case_text: Spencer Constructions Pty Ltd v G & M Aldridge Pty Ltd [1997] FCA 681 ; (1997) 76 FCR 452 at 461 464 a Full Court of this Court discussed the relevant principles by reference to a number of the relevant authorities. At 464F G the Court said: In our view a "genuine" dispute requires that: the dispute be bona fide and truly exist in fact; the grounds for alleging the existence of a dispute are real and not spurious, hypothetical, illusory or misconceived. In her Reasons for Judgment published on 12 February 2008, McCallum J recorded the following (at [12]): Mr Watts does not dispute that there were defaults in the two loan agreements, nor that the penalty charges incurred as a consequence were calculated in accordance with the two loan agreements. In this Court, Mr Watts did not take a different position. In particular, he made no submission to the effect that the various components making up the judgment debt of $1,028,725.29 had not been charged in accordance with the terms of the loan agreements. His attack on the judgment was more fundamental. It was Mr Watts' submission that the penalty charges and fees levied against BMG by Adelaide Bank ought to be disregarded entirely, that the costs incurred by Adelaide Bank in selling the property ought to be disregarded entirely and that BMG should get the benefit of the higher purchase price (viz $1,075,000) apparently negotiated by Mr Watts with Mr Campbell. These views or submissions are reflected in the calculation which I allowed Mr Watts to advance by way of submission earlier this week.


case_outcome: applied

case_text: Upton v Tasmanian Perpetual Trustees Ltd [2007] FCAFC 57 ; (2007) 158 FCR 118 at [86] [90] (pp 138 143) a Full Court of this Court summarised various propositions that may be drawn from the relevant decisions of the High Court as to the content of the duty of good faith owed by a mortgagee to a mortgagor in the context of the exercise of a mortgagee's power of sale. In the passages referred to, the Full Court held that a mortgagee is entitled to exercise the power of sale for its own benefit but must take reasonable steps to obtain a fair price which in turn will involve taking reasonable steps to ascertain the value before selling.


case_outcome: referred to

case_text: Triad also seeks to argue that clear and unambiguous words are required before a provision will be construed to take away property without compensation: Bropho v State of Western Australia and Another (1990) 171 CLR 1 at 17-18. It is claimed that s 233 of the Corporations Act 2001 (Cth) should not be construed as permitting the Court to remove the property rights of another person other than the company against which orders were sought (BGR). 53 Grounds 3 to 7, 9 and 10 of the draft notice of appeal raise the question whether, even if power were available to the primary Judge to make Order 6, his Honour erred in making such order. This question raises the issue of the statutory construction of s 233 of the Corporations Act 2001 (Cth). 54 Grounds 8, 11 and 12 of the draft notice of appeal also raise the issue of the appropriateness of Order 6 in respect of other relief which was granted by the Court pursuant to the orders of the primary Judge. 55 TFI and Mr Bax oppose the orders sought in Triad's application for extension of time. They submit that no proper or satisfactory explanation has been provided by Triad for the delay in bringing of the application for leave and that there would be substantial and material prejudice to TFI, Mr Bax and all BGR companies if leave were granted. They also assert that the proposed appeal is futile and a waste of costs and resources. TFI and Mr Bax submit that it is inconceivable that Mr Gulson could not have understood the reasons of the primary Judge. 56 TFI and Mr Bax submit that there were two scenarios which the primary Judge had to consider in remedying the oppression of TFI, namely Option A and Option B. His Honour made orders having the effect of Option B. TFI and Mr Bax challenge the factual assertion by Mr Gulson that Mr Gulson acted promptly after learning of Order 6. It is submitted that Mr Gulson was fully aware of the consequence of the primary Judge making orders in accordance with Option B, but that he consciously chose not to appeal whilst costs were being incurred by the other parties. 57 TFI and Mr Bax also submit that there is no evidence that Triad's former lawyers did not understand the effect of Order 6. In the absence of evidence from them it is submitted that the Court could not be satisfied that there exists a proper or satisfactory explanation for the delay in pursuing the appeal. 58 It is claimed that TFI has to date paid $75,000 to fund recovery action by the liquidator and both TFI and Mr Bax have incurred heavy legal costs. The liquidator has made interlocutory applications to the courts, served statutory demands and incurred costs which would have been avoided had Triad filed a notice of appeal in time. It is submitted that the continuation of these proceedings would be wasteful and cause severe inconvenience.


case_text: In considering an application for leave to appeal from an interlocutory judgment the Court is required to consider whether the decision sought to be appealed from is attended with sufficient doubt to warrant it being reconsidered by the Full Court and whether substantial injustice would result if leave were refused supposing the decision to be wrong (see Sharp & Anor v Deputy Federal Commissioner of Taxation & Ors (1988) 88 ATC 4184 ; Decor Corporation Pty Ltd and Another v Dart Industries Inc [1991] FCA 655 ; (1991) 33 FCR 397 ; Cadence Asset Management Pty Ltd and Others v Concept Sports Ltd and Others (2006) 58 ACSR 435 at 440-441). In Sharp & Anor v Deputy Federal Commissioner of Taxation & Ors (1988) 88 ATC 4184 Burchett J observed at 4,186: In my opinion, the sufficiency of the doubt in respect of the decision and the question of substantial injustice should not be isolated in separate compartments. They bear upon each other, so that the degree of doubt which is sufficient in one case may be different from that required in another. Ultimately, a discretion must be exercised on what may be a fine balancing of considerations. Such observations were adopted by the Full Court in Decor Corporation Pty Ltd and Another v Dart Industries Inc [1991] FCA 655 ; (1991) 33 FCR 397 at 399.


case_text: Additionally, it is submitted that the Court proceeded beyond the relief sought and made orders which were unnecessary or inappropriate: see Cadwallader v Bajco Pty Ltd & Ors [2002] NSWCA 328 at [251] . The relief claimed in the proceedings only sought orders for the winding up of BGR, the appointment of a liquidator and the repayment of overpaid consultancy fees in order to address the oppression. 46 Triad submits that the Court must have expected the liquidator would perform its statutory duties in connection with the administration of BGR as required by ss 474 and 477 of the Corporations Act 2001 (Cth) and reg 5.6.53 of the Corporations Regulations 2001 (Cth). Triad submits that an order such as Order 6 interferes or displaces the function of the liquidator to adjudicate in respect of a proof of debt, and accordingly such order could not reasonably be an accurate reflection of the Court's intention. 97 Triad also submits that there is sufficient doubt to warrant the slip rule decision being reconsidered by the Full Court because the primary Judge relied upon matters not contained in his Honour's earlier reasons to dismiss the slip rule application which is inconsistent with the requirement that the Court should objectively consider whether the orders reflect the published reasons; the primary Judge appeared to proceed on the basis that Triad carried an onus to propose a new regime of orders to give effect to the Court's reasons; the Court must have contemplated that the liquidator would perform his statutory duties in connection with the administration and that Order 6 would, uncorrected, interfere with the liquidator's functions; the Court's intention is its objective intention to be gleaned from its reasons; the Court could not have intended by Order 6 to objectively extinguish Triad's action against BGR and to have effectively ordered specific performance of the alleged agreement; and the Court could not have intended to make orders which afforded TFI relief beyond which was necessary or appropriate (see Cadwallader v Bajco Pty Ltd [2002] NSWCA 328 at [251] ). 98 With regard to the last submission, Triad submits that an order compelling the winding up BGR, the appointment of Mr Kerr as liquidator and the repayment of the overpaid consultancy fee (i.e. those incurred in 2005 and 2006) would have addressed the oppression. 99 The answer to each of the submissions concerning 'sufficient doubt' lies in the clear findings of his Honour contained in the first reasons. Contrary to Mr Gulson's contention, the primary Judge found that the debt owed by BGR to both TFI and Triad for consultancy fees in the period 2001 to 2005 had not been extinguished. However his Honour found that the oppression which existed in the management of BGR against TFI caused by Triad would be remedied by the refund by Triad and Cordato of consultancy fees paid during 2005 and 2006; by repayment of the overpaid monies arising from the February 2006 distribution; by payment of the sum of $500,000 to TFI; and by distribution of the proceeds of the sale of the Main Camp Station by way of fully franked dividends to all parties in accordance with their shareholding. By virtue of such orders, the oppression which his Honour found resulted from Triad's actions would be remedied. The Court finds that such orders reflected the intentions of the primary Judge. 100 Order 6 gave effect to part of the arrangement resulting from his Honour's findings. The relief which was sought in the slip rule application by Triad would have resulted in an order directly contrary to his Honour's findings, namely that upon payment of the fully franked dividends to the shareholders after the payment of $500,000 by BGR to TFI, neither TFI nor Triad would have any entitlement to consultancy fees. 101 The order which was sought in the slip rule application would have resulted in the dismantling of one of the essential orders made by his Honour to redress the oppression. In response to the submission that his Honour relied upon matters in the slip rule application not previously contained in his reasons, it is apparent that such matters are merely explanations for his reasons rather than matters upon which he relied in reaching his decision. 102 The Court can find no error in the primary Judge's approach. Comparing Order 6 with the primary Judge's findings, it is apparent that it gives effect to that part of his Honour's decision which was integral to the scheme to overcome the oppression. 103 For the reasons indicated above the Court finds that the decision of the primary Judge is not attended with sufficient doubt to warrant it being reconsidered by the Full Court.


case_title: Decor Corporation Pty Ltd and Another v Dart Industries Inc [1991] FCA 655 ; (1991) 33 FCR 397


case_outcome: followed

case_text: The Court is satisfied that in respect of its delay Triad has 'rested on its rights' (per Fisher J in Doyle v Chief of General Staff (1982) 42 ALR 283 at 287). Accordingly the Court finds that the explanation for the delay in seeking leave to appeal is not satisfactorily explained. 80 Mr Kerr has been provided with funding by TFI and Mr Bax to meet the costs of the recovery action against Triad and Cordato for monies owing to BGR. Costs of the proceedings have been itemised at $675,188.05. On 18 July 2007 the Registry provided a Preliminary Notice of Taxation in the amount of $529,450. 81 Mr Bax has testified that he provided $77,004.59 towards the liquidator's costs in respect of recovery actions taken by Gadens on behalf of the liquidator.


case_text: Triad submits that the objective intention of the Court is to be gleaned from its reasons for judgment. Even if the primary Judge considered that the challenged order correctly reflected his intention, the objective test prevails: see Gikas and Others v Papanayiotou and Another [1977] 2 NSWLR 944 at 951-954; Owston Nominees No 2 Pty Ltd v Branir Pty Ltd [2003] FCA 629 at [25] - [27] . An application to vary an order of the Court to give effect to that Court's intention is within the ambit of the slip rule: see Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385 at 391.


case_title: Gikas and Others v Papanayiotou and Another [1977] 2 NSWLR 944


case_text: The interests of all parties are to be considered when determining whether 'special reasons' exist as referred to in O 52 r 15(2) of the Rules. Such interests include the interest of obtaining finality in litigation. In Hughes v National Trustees Executors & Agency Co. of Australasia Ltd [1978] VR 257 McInerney J said at 262-263: The object of the rule is to give the Court a discretion to extend the time with the view to the avoidance of an injustice... One object of fixing times under the rules is to achieve a time table for the conduct of litigation in order to achieve finality of judicial determinations. A successful litigant has an interest in knowing that a claim against him has been determined and that he is no longer 'at risk'...


case_text: The applicant refers to the authorities of Parker v The Queen [2002] FCAFC 133 , Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349, and Jess v Scott and Others (1986) 12 FCR 187 , each of which refer to the principles to be considered when dealing with an application under O 52 r 15(2) of the Rules for extension of time. Such rule provides: (2) Notwithstanding anything in the preceding subrule, the Court or a Judge for special reasons may at any time give leave to file and serve a notice of appeal. 64 Order 52 Rule 15(2) of the Rules requires the applicant to demonstrate that 'special reasons' exist justifying the grant of leave to extend time in which to appeal. The Court must consider whether there has been a satisfactory explanation for the delay; whether there is prejudice to any other party; and whether the grounds for appeal satisfy the Court that there are prospects of success: see Hunter Valley Developments Pty Limited v Cohen (1984) 3 FCR 344 at 349; Parker v The Queen [2002] FCAFC 133 ; Jess v Scott and Others (1986) 12 FCR 187. The Court will consider each of the above hereunder. 65 A satisfactory explanation for the delay is an essential 'pre-condition to the exercise of discretion' in considering an application for extension of time to appeal: see Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348. 66 The first reasons were delivered on 12 February 2007. Order 6 was made on 19 February 2007 and on 28 February 2007 the primary Judge delivered his second reasons. There is no evidence of any legal advice that might have been provided to Mr Gulson and Triad by their lawyers concerning the effect of his Honour's judgment and orders by Cordato who conducted the proceedings for Triad. 67 Mr Gulson acknowledged that he read the first reasons carefully. Orders were thereafter made on 14 February 2007. He did not attend the making of the orders on 19 February 2007 and was not present in Court on 28 February 2007 when the second reasons were delivered. He states that he did not recall the second reasons being brought to his attention. He also states that he instructed new solicitors to act on behalf of himself on or about 13 March 2007. 68 Mr Quigley was instructed after the letter of demand was received from the liquidator. Mr Quigley has testified that he asked his client to provide him with copies of the relevant documentation concerning the litigation and was provided with a copy of the first reasons. Order 6 was not provided, nor was any other judgment provided to Mr Quigley by Mr Gulson. Mr Quigley was provided with the orders made on 12 February 2007, being the first orders arising out of the first reasons. Mr Quigley deposed that his instructions on behalf of his client were to prepare a letter in response to the letter of Gadens, solicitors for Mr Kerr, dated 13 March 2007. Mr Quigley did not make any inquiries of counsel that had been retained by Triad, nor is there any evidence that he sought information from Triad's former solicitors. Mr Quigley prepared his letter which was forwarded on 5 April 2007 in reply to Gadens' letter. Such letter did not refer to the implications of Option A or Option B in the first reasons but instead referred to one portion of the first reasons where his Honour found that both TFI and Triad were entitled to consultancy fees in excess of $1,000,000. 69 The Court observes that Mr Quigley's letter dated 5 April 2007 refers to his awareness that orders had been made by the Court. Mr Quigley's letter states: The orders to which you refer in your letter are to be understood in the context of the principal relief granted by the Court in connection with the winding up of BGR. The various further orders give effect to the Court's conclusion in relation to a variety of matters of financial adjustment as between the respective shareholders in BGR. 70 The letter from Gadens to Mr Quigley dated 24 July 2007 referred to the effect of Order 6. Mr Quigley testified that at that date he had not been provided with a full set of orders and that he was unsure of what orders had been made. Mr Quigley said that he was not aware that the proceedings had been stood over after the first reasons had been given. Mr Quigley said that only after receiving the letter from Gadens dated 24 July 2007, which Mr Quigley pointed out was more than three months after he had written his letter, did he become aware that Order 6 existed. He said there was 'some confusion about how many orders have been made' and only then made an enquiry of the previous solicitors in relation to a full set of orders. The implication arising from this answer is that the former solicitors apparently held a full set of the orders. 71 The Court accepts that Mr Quigley was not fully informed of the orders of the Court, especially Order 6, at the time he wrote his letter dated 5 April 2007. The Court also accepts that Mr Quigley's retainer was limited to the purpose of writing such letter.


case_text: The applicant refers to the authorities of Parker v The Queen [2002] FCAFC 133 , Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349, and Jess v Scott and Others (1986) 12 FCR 187 , each of which refer to the principles to be considered when dealing with an application under O 52 r 15(2) of the Rules for extension of time. Such rule provides: (2) Notwithstanding anything in the preceding subrule, the Court or a Judge for special reasons may at any time give leave to file and serve a notice of appeal. 64 Order 52 Rule 15(2) of the Rules requires the applicant to demonstrate that 'special reasons' exist justifying the grant of leave to extend time in which to appeal. The Court must consider whether there has been a satisfactory explanation for the delay; whether there is prejudice to any other party; and whether the grounds for appeal satisfy the Court that there are prospects of success: see Hunter Valley Developments Pty Limited v Cohen (1984) 3 FCR 344 at 349; Parker v The Queen [2002] FCAFC 133 ; Jess v Scott and Others (1986) 12 FCR 187. The Court will consider each of the above hereunder. 91 In Jess v Scott and Others (1986) 12 FCR 187 the Full Court said at 195: What is needed to justify an extension of time is indicated in r 15(2) by the words "for special reasons". It is that there be shown a special reason why the appeal should be permitted to proceed, though filed after the expiry of twenty-one days. In that context, the expression "special reasons" is intended to distinguish the case from the usual course according to which the time is twenty-one days. But it may be so distinguished (not necessarily will, for the rule gives a discretion) wherever the Court sees a ground which does justify departure from the general rule in the particular case. Such a ground is a special reason because it takes the case out of the ordinary. We do not think the use of the expression "for special reasons" implies something narrower than this. 92 For the reasons indicated above the Court is unable to find that 'special reasons' exist which would justify an exercise of the Court's discretion to grant an extension of time to appeal in favour of Triad. 93 Triad's application under the slip rule was predicated upon the submission that Order 6 did not reflect the true intention of the Court. Triad sought to have Order 6 varied to read: (a) Declares that other than as provided in these orders the first plaintiff and the second defendant have no subsisting entitlement to consultancy fees from any of the first, fourth, fifth, sixth, seventh and eighth defendants. (i) after 28 February 2006, and (ii) in an amount exceeding $15,000 (plus GST) per month in respect of the period 20 July 2005 to 28 February, 2006. (b) The Court orders that, subject to sub-paragraphs 1(i)(a) and 1(i)(b) above, and subject to the second defendant issuing to the first defendant proper tax invoices, the second defendant's entitlements to payment of consultancy fees of $20,833.33 per month (plus GST) for the period 1 July, 2000 to 20 July, 2005 (to the extent they are payable) are not otherwise [affected] by sub-paragraphs 1(i)(a) and 1(i)(b) herein.


case_text: As the Court is satisfied that Mr Gulson was fully aware of the effect of the primary Judge's first reasons, Triad's submissions claiming that its instruction of new solicitors contributed to Triad's delay in filing the notice of appeal can be discarded. For the same reason, Mr Quigley's claimed ignorance of the primary Judge's orders is immaterial. Further, the absence of any evidence from Triad's former lawyers entitles the Court to draw the inference that their evidence would not have assisted Triad's application: see Jones v Dunkel and Another (1959) 101 CLR 298.


case_title: Owston Nominees No 2 Pty Ltd v Branir Pty Ltd [2003] FCA 629


case_title: Parker v The Queen [2002] FCAFC 133

case_text: The applicant refers to the authorities of Parker v The Queen [2002] FCAFC 133 , Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349, and Jess v Scott and Others (1986) 12 FCR 187 , each of which refer to the principles to be considered when dealing with an application under O 52 r 15(2) of the Rules for extension of time. Such rule provides: (2) Notwithstanding anything in the preceding subrule, the Court or a Judge for special reasons may at any time give leave to file and serve a notice of appeal. 64 Order 52 Rule 15(2) of the Rules requires the applicant to demonstrate that 'special reasons' exist justifying the grant of leave to extend time in which to appeal. The Court must consider whether there has been a satisfactory explanation for the delay; whether there is prejudice to any other party; and whether the grounds for appeal satisfy the Court that there are prospects of success: see Hunter Valley Developments Pty Limited v Cohen (1984) 3 FCR 344 at 349; Parker v The Queen [2002] FCAFC 133 ; Jess v Scott and Others (1986) 12 FCR 187. The Court will consider each of the above hereunder.


case_text: The Court is not satisfied that grounds have been advanced 'to suggest that any appeal would enjoy any prospects of success' : see Savage v Cranstoun (Trustee) [2001] FCA 1789 per Spender J at [22]. The orders made by the primary Judge are beneficial to all parties, and the combined effect of his Honour's orders implemented a scheme to address the oppression caused by Triad. In these circumstances the applicant has not demonstrated any prospect of success in the appeal: see Jeffers v R [1993] HCA 11 ; [1993] 112 ALR 85 at 86.


case_text: In considering an application for leave to appeal from an interlocutory judgment the Court is required to consider whether the decision sought to be appealed from is attended with sufficient doubt to warrant it being reconsidered by the Full Court and whether substantial injustice would result if leave were refused supposing the decision to be wrong (see Sharp & Anor v Deputy Federal Commissioner of Taxation & Ors (1988) 88 ATC 4184 ; Decor Corporation Pty Ltd and Another v Dart Industries Inc [1991] FCA 655 ; (1991) 33 FCR 397 ; Cadence Asset Management Pty Ltd and Others v Concept Sports Ltd and Others (2006) 58 ACSR 435 at 440-441). In Sharp & Anor v Deputy Federal Commissioner of Taxation & Ors (1988) 88 ATC 4184 Burchett J observed at 4,186: In my opinion, the sufficiency of the doubt in respect of the decision and the question of substantial injustice should not be isolated in separate compartments. They bear upon each other, so that the degree of doubt which is sufficient in one case may be different from that required in another. Ultimately, a discretion must be exercised on what may be a fine balancing of considerations. Such observations were adopted by the Full Court in Decor Corporation Pty Ltd and Another v Dart Industries Inc [1991] FCA 655 ; (1991) 33 FCR 397 at 399. 104 In considering whether substantial injustice would result if leave to appeal were refused supposing the decision to be wrong, the Court notes that a refusal to grant leave to appeal to Triad would result in the extinguishment of Triad's action against BGR. However, the considerations of sufficient doubt and substantial injustice 'bear upon each other' ( Sharp & Anor v Deputy Federal Commissioner of Taxation & Ors (1988) 88 ATC 4184 per Burchett J at 4,186). It follows that, supposing the primary Judge's decision to be wrong, the level of injustice suffered by Triad would need to be substantial before the Court could exercise its discretion to grant leave from the primary Judge's decision. In light of the Court's above findings regarding the lack of doubt attending such decision, the Court does not consider that such threshold of substantial injustice has been reached. 105 For the above reasons the Court dismisses the application for leave to appeal from the decision of the primary Judge dismissing the slip rule application. I certify that the preceding one hundred and five (105) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy. Associate: Dated: 8 May 2008 Counsel for the Applicant: Mr Coles QC with Mr Docker Solicitor for the Applicant: Mr Quigley Counsel for the First and Second Respondents: Mr Alkadamani Solicitor for the First and Second Respondents: Mr Hayward Solicitor for the Third, Fifth, Sixth, Seventh, Eighth and Ninth Respondents: Mr Hirst Solicitor for the Fourth Respondent: Cordato Partner Lawyers Date of Hearing: 27 & 29 February 2008 Date of Judgment: 8 May 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/617.html


case_text: Grounds 1, 2 and 13 of the draft notice of appeal raise the question whether the Court has power under s 233 of the Corporations Act 2001 (Cth) to extinguish a debt owed by the company to another person. Triad submits that these grounds raise a constitutional issue, namely whether s 233 allows for the acquisition of property otherwise than on just terms as required by s 51(xxxi) of the Commonwealth of Australia Constitution Act 1900 (Cth) ('the Constitution '). Triad seeks to argue that the debt owed by BGR to Triad for consultancy fees was Triad's asset which could only be extinguished or released by agreement for valuable consideration or under seal: see The Commissioner of Stamp Duties for the State of New South Wales v Bone and Others (1976) 135 CLR 223 at 229. In the absence of any agreement between the parties, Triad did not surrender its claim.


case_outcome: considered

case_text: Insofar as s 51(xxxi) of the Constitution is relied upon as a ground of appeal, the Court refers to The Commonwealth of Australia v WMC Resources Limited [1998] HCA 8 ; (1998) 194 CLR 1 where Gaudron J said at [79]: If a law modifies or extinguishes a statutory right which has no basis in the general law in circumstances in which some person obtains some consequential advantage or benefit in relation to property, that law may and, ordinarily, will effect an acquisition. 88 In the present case there was no acquisition of property resulting from the operation of a Commonwealth law. Rather, the extinguishment of Triad's right to consultancy fees (even if such extinguishment could be categorised as an acquisition) resulted from a court order. Accordingly the Court considers that this ground of appeal would not have any prospects of success.


case_text: On 12 February 2007 the primary Judge delivered reasons for judgment in proceedings NSD1140/2005: see The Food Improvers Pty Limited and Anor v BGR Corporation Pty Limited and Ors (No 3) [2007] FCA 97 ('the first reasons'). 12 Mr Gulson testified that the right to consultancy fees had been cancelled and not merely suspended. In the first reasons the primary Judge rejected such contention and found that it would have been unfair to the shareholders to work for BGR with no prospect of remuneration even if BGR's fortunes improved. His Honour found at [63]: I am of opinion that the parties agreed in March 2001 that BGR's liability for payment of the consultancy fees which would otherwise become due under cl 4.1 would be made subject to a condition that BGR be able to pay before the consultant were entitled to issue tax invoices. 13 During 2005 negotiations had taken place between the joint shareholders of BGR in respect of the payment of consultancy fees exceeding $1,000,000 claimed by TFI through Mr Bax. Meetings had been held between the partners at which the two scenarios, Option A and Option B, were suggested for the distribution of the proceeds of sale of Main Camp Station among the shareholders. It is common ground that payment to the shareholders by way of fully franked dividends was beneficial to them for tax reasons. His Honour found that no agreement was reached between the parties despite the extensive negotiations to resolve their differences concerning TFI's claim for consultancy fees. 14 Before the primary Judge Mr Gulson claimed that he had not concerned himself with the details of the draft settlement deeds involving Options A and B and had never read their provisions relating to the payment of consultancy fees to TFI. The primary Judge did not accept such assertion. 15 Main Camp Station was sold on 12 December 2005 for $9,000,000. His Honour concluded at [195] that the negotiations to settle the partners' disputes culminated in Cordato's letter dated 11 January 2006 that proceeded upon the basis that the method of distribution 'would be in accordance with Option B' . However BGR, at the direction of Mr Gulson and without consultation, wrote to TFI on 23 February 2006 advising that an interim dividend of $3,500,000 had been declared. Such funds were derived from the proceeds of the sale. The primary Judge found at [252] that: For months the plaintiffs were told that a distribution would be made in accordance with Option B. Instead, they were confronted with a fait accompli when a different form of distribution was made without any further consultation in February 2006. His Honour found that the distribution on 23 February 2006 was unfairly prejudicial to TFI. 16 Having found that TFI had suffered oppression, the primary Judge considered the relief to be granted. At [269] his Honour said: An order for specific performance of an agreement to distribute in accordance with option B is not appropriate because no contact so to distribute was made. But it is not the end of the matter. Both Triad and Food Improvers are entitled to render invoices so as to be paid over $1 million each in consultancy fees which had not been invoiced. Food Improvers has established that it is entitled to receive interest from BGR on its loan of $111,000. The plaintiffs' position is that they wish Food Improvers to receive only $500,000 by way of a payment for the consultancy fees forgone. Likewise, Mr Gulson has indicated that he and Triad do not wish to receive any consultancy fees. As the difference between options A and B showed, Triad was fiscally better off by receiving only dividends which would be fully franked together with the corresponding imputation credits. And, Mr Lombardo gave advice that that was best for both Triad's and Food Improvers' positions. 17 His Honour then said [270]: The negotiations in September 2005 and all the correspondence up to the time of the distribution on 22 February 2006 demonstrated that all the shareholders were content to have a payment of $500,000 made in respect of Food Improvers' entitlement to consultancy fees and thereafter a distribution made in accordance with the balance of option B. Having regard to the oppression which I have found in respect of the way Food Improvers has been treated, I am of opinion that it would be appropriate to make an order requiring BGR, Triad and Cordato Partners Services to cause the payment of a tax invoice for $500,000 plus GST, when issued by Food Improvers, in respect of the compromise of its entitlement to consultancy fees payable by BGR. 18 His Honour continued at [271]: The dividend paid on 22 February 2006 should be set aside and BGR should be required to give effect to a distribution in accordance with the mechanism in option B. That is, the $500,000 consultancy fee plus GST should be paid to Food Improvers by BGR and then a dividend paid to its shareholders which would be used to repay their loan accounts. The amounts so received by BGR would then fund a second dividend to its shareholders. It may be possible for the parties to agree some payments between them of net amounts instead of this, in light of the fact that the earlier payments have been made. Food Improvers will also be entitled to have the dividends paid to it by BGR treated as fully franked. 19 In summary, the primary Judge made orders which had the same effect as Option B. The effect of the order necessarily subsumed the claim by Triad against BGR for consultancy fees by the payment of fully franked dividends. The combined effect of the orders was to remedy the proved oppression by resolving the claims of TFI and Triad upon BGR for consultancy fees and to achieve an equitable winding up of BGR for its shareholders. 20 The alternative proposal, namely Option A, was one in which both TFI and Triad would be paid the whole of their entitlement to consultancy fees. His Honour found that such payment, followed by the residue distribution from the sale of Main Camp Station, would be less advantageous to all parties. 21 Pursuant to the first reasons, his Honour also found that Triad was to refund consultancy fees paid to it in the period between 20 July 2005 to 28 February 2006 and after 28 February 2006, later calculated in the amount of $311,550.86. 22 On 12 February 2007 the primary Judge made orders in relation to certain aspects of the relief and stood the proceedings over to 14 February 2007 for the making of further orders. 23 On 14 February 2007 the primary Judge made orders that are not relevant to the present applications. His Honour stood over the proceedings to 19 February 2007 for the making of additional orders. 24 On 19 February 2007 after a further hearing before the primary Judge, his Honour made additional orders. Those orders, inter alia, effectively adopted the provisions of Option B. Order 6 of such orders ('Order 6') provided: Declares that other than as provided in these orders the first plaintiff and the second defendant have no subsisting entitlement to consultancy fees from any of the first, fourth, fifth, sixth, seventh and eighth defendants. 25 On 19 February 2007 the primary Judge also found that Triad and Cordato had been overpaid in respect of the interim dividend declared by BGR on 22 February 2006. Triad and Cordato were ordered to repay those monies, being $340,000 and $40,000 respectively. 27 His Honour also said at [12]: I also considered that it was appropriate to make an order that BGR actually pay to Food Improvers the consultancy fee of $500,000 plus GST. For the reasons that I gave in my principal judgment ([2007] FCA 97 at [269] - [271] ) Triad should receive only a distribution of the proceeds of sale of Main Camp Plantation by way of a fully franked dividend, and should not be able to claim consultancy fees in the liquidation. Likewise, because Mr Bax said that, for its own reasons, Food Improvers wished to have its distribution made by payment of the consultancy fee (limited to $500,000 plus GST) together with the balance as a fully franked dividend, Food Improvers should not be able to make any claim further for consultancy fees in liquidation. For those reasons I made declarations that neither Food Improvers nor Triad had any subsisting entitlement to consultancy fees having regard to the adoption of option B in the resolution. 28 On 28 February 2007 the primary Judge also ordered Triad and Cordato to repay BGR 90% of all amounts paid by way of legal costs and disbursements in respect of the proceedings. 29 On or about 13 March 2007, Triad received a letter from Gadens Lawyers ('Gadens'). Such letter informed Triad that Gadens were acting for the liquidator, David John Kerr of BGR. The letter demanded payment of $651,550.86 said to be owing to BGR by Triad pursuant to the Court's orders. Triad then engaged new lawyers, namely Shaw Reynolds Bowen & Gerathy Lawyers, and Andrew Peter Quigley of that firm had carriage of the matter. 37 On 22 November 2007 the primary Judge delivered his written reasons in respect of the slip rule application: see The Food Improvers Pty Limited and Anor v BGR Corporation Pty Ltd and Ors (No 6) [2007] FCA 1812 ('the slip rule reasons'). In such reasons his Honour considered Options A and B and observed at [20]: By informally agreeing to distribution in accordance with Option B the parties were adopting a position that neither wished to assert their full legal rights to be paid under Option A... Since Mr Gulson was positively asserting there was no such entitlement, I found that he had indicated that he and Triad did not wish to receive those consultancy fees ( Food Improvers (No 3) [2007] FCA 97 at [269] ). That finding was inevitable given the joint rejection of distributing in accordance with Option A.


case_text: On 28 February 2007 the primary Judge delivered reasons ('the second reasons') which related to the hearing on 19 February 2007, particularly in relation to Order 6: see The Food Improvers Pty Ltd and Anor v BGR Corporation Pty Ltd and Ors (No 4) [2007] FCA 220. As to the adoption of Order 6, his Honour said at [9]: I also made an order that the resolution of the directors of BGR made on 22 February 2006 declaring and effecting payment of the interim dividend, which I found to be oppressive, be set aside and substituted a resolution which sought to give effect to what was proposed in option B. I was of opinion that it would be too cumbersome to order meetings of BGR or its directors to take the procedural steps necessary to implement and vote for the resolution.


case_text: On 22 November 2007 the primary Judge delivered his written reasons in respect of the slip rule application: see The Food Improvers Pty Limited and Anor v BGR Corporation Pty Ltd and Ors (No 6) [2007] FCA 1812 ('the slip rule reasons'). In such reasons his Honour considered Options A and B and observed at [20]: By informally agreeing to distribution in accordance with Option B the parties were adopting a position that neither wished to assert their full legal rights to be paid under Option A... Since Mr Gulson was positively asserting there was no such entitlement, I found that he had indicated that he and Triad did not wish to receive those consultancy fees ( Food Improvers (No 3) [2007] FCA 97 at [269] ). That finding was inevitable given the joint rejection of distributing in accordance with Option A.


case_title: AWB Limited v Cole [2006] FCA 571

case_text: In AWB Limited v Cole [2006] FCA 571 (' AWB v Cole '), I determined a claim for legal professional privilege over a document that AWB Limited ('AWB') inadvertently produced to the Commission of Inquiry ('the Commission') that is being conducted by the Honourable Terence Rhoderic Hudson Cole AO RFD QC ('the Commissioner'). The present proceeding, which was instituted by AWB on 30 May 2006, relates to claims for legal professional privilege over a large number of documents. 2 I have two notices of motion before me. Under the first motion, AWB seeks the continuation of an interim injunction (which Kenny J granted on 20 June 2006) until the hearing and determination of the proceeding or further order of the Court. By the second notice of motion, the Commonwealth seeks to have certain preliminary questions determined pursuant to O 29 r 2 of the Federal Court Rules prior to any trial of the issues of legal professional privilege that are raised by the proceeding. 3 The Commonwealth has informed the Court that it will consent to the continuation of the injunction pending the final determination of this proceeding if it is unsuccessful on its notice of motion. The Commonwealth also said that it would consent to the continuation of the injunction pending the determination of its notice of motion. The Commissioner has indicated that he will abide any order of the Court, save as to costs. The Commonwealth therefore submitted that there is no present controversy as to the continuation of the injunction until the determination of this proceeding.


case_text: The legal principles that govern the exercise of the Court's discretion under this rule have been discussed in a number of recent cases, and are well established: see Bass v Permanent Trustee Co Ltd [1999] HCA 9 ; (1999) 198 CLR 334 (' Bass' ) at 355-359; Tepko Pty Ltd v Water Board [2001] HCA 19 ; (2001) 206 CLR 1 (' Tepko' ) at 55; Reading Australia Pty Ltd v Australian Mutual Provident Society (1999) 217 ALR 495 (' Reading' ) at 497-500 [7]-[11]; Direct Factory Outlets Homebush Pty Ltd v Property Council of Australia [2005] FCA 1002 ( 'Direct Factory Outlets' ) at [2]-[4]; Souflett Beheer v AWB Limited [2004] FCA 518 ( 'Souflett Beheer' ) at [19]-[20]; Kockums AB v Commonwealth [2002] FCAFC 138 at [38] - [41] ; SmithKline Beecham (Aust) Pty Ltd v Chipman [2002] FCA 674 (' SmithKline' ) at [35]-[39]; SPI Spirits (Cyprus) Ltd v Diageo Australia Ltd [2006] FCA 14 (' Diageo' ) at [22]-[27]; Save the Ridge Inc v Commonwealth [2005] FCAFC 203 ; (2005) 147 FCR 97 ( 'Save the Ridge' ) at 103-104 [15]-[17]; Rainsford v Victoria [2005] FCAFC 163 ; (2005) 144 FCR 279 (' Rainsford' ) at 291-294 36-44; Director of Fisheries (NT) v Arnhem Land Aboriginal Land Trust [2001] FCA 98 ; (2001) 109 FCR 488 ( 'Director of Fisheries' ) at 521 [139] and 526-527 [163]; and Tallglen Pty Ltd v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130 (' Tallglen' ) at 141-142. 31 It would not be appropriate to separate a question if it would not permit or involve a conclusive or final judicial decision that is based on concrete facts, either established or agreed, for the purpose of quelling a controversy between the parties: Bass at 355 [45] and 357 [49]; and Reading at 498 [8]. In Bass , Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ said at 357 [49]: 'As the answers given by the Full Court and the declaration it made were not based on facts, found or agreed, they were purely hypothetical. At best, the answers do no more than declare that the law dictates a particular result when certain facts in the material or pleadings are established. What those facts are is not stated, nor can they be identified with any precision. They may be all or some only of the facts. What facts are determinative of the legal issue involved in the question asked is left open. Such a result cannot assist the efficient administration of justice. It does not finally resolve the dispute or quell the controversy. Nor does it constitute a step that will in the course of the proceedings necessarily dictate the result of those proceedings. Since the relevant facts are not identified and the existence of some of them is apparently in dispute, the answers given by the Full Court may be of no use at all to the parties and may even mislead them as to their rights. Courts have traditionally declined to state - let alone answer - preliminary questions when the answers will neither determine the rights of the parties nor necessarily lead to the final determination of their rights. The efficient administration of the business of courts is incompatible with answering hypothetical questions which frequently require considerable time and cause considerable expense to the parties, expense which may eventually be seen to be unnecessarily incurred.' 32 The separate question procedure poses special problems where the preliminary question is one of mixed fact and law: Bass at 358 [53]. In that situation, it is essential that there be precision both in formulating the question and specifying the facts upon which it is to be decided for the reasons given by Brooking J in Jacobson v Ross [1995] 1 VR 337 at 341. 34 In Bass at 359 [56], the High Court said that it would be contrary to the judicial process and no part of the judicial power to effect a determination of rights by applying the law to facts which are neither agreed nor determined by reference to the evidence in the case. The Full Federal Court applied this principle in Rainsford at 291 [36] and Director of Fisheries at 526 [163]. In Rainsford at 291 [36], Kenny J said that, in order for a court exercising federal jurisdiction to utilise the separate questions procedure, either the parties must agree on the relevant facts or the court must determine the facts before deciding the question. 46 While the refusal of declaratory relief on discretionary grounds will always be heavily dependent on the facts of the particular case, the discretion must be exercised within a framework of relevant legal principle. The cases afford guidance as to the way in which the discretion is to be exercised. In this sense, the question whether declaratory relief should be refused as a matter of discretion raises questions of fact and law, albeit heavily weighted towards the former. The separation of such a question poses special problems for the reasons stated by the High Court in Bass at 358 [53] and by Brooking J in Jacobson at 341. 56 In my opinion, the statements of principle by Branson J in Reading (which are summarised above in paragraph 33) are directly applicable. So too are the principles stated in Bass and Jacobson concerning mixed questions of fact and law. I am not satisfied that all of the necessary facts have been ascertained, agreed or proven so as to permit the judicial determination of question 1.1 as a separate question. Further, I am not satisfied that, on a separate trial of question 1.1, the Court would be placed in a position where it can consider all relevant matters before it exercises its discretion to grant or refuse relief. 63 The Commonwealth expressly conceded that this proceeding is neither hypothetical nor abstract, and raises a genuine controversy that constitutes a 'matter' appropriate for judicial determination: Bass at 355-356; Ainsworth v Criminal Justice Commission [1992] HCA 10 ; (1992) 175 CLR 564 at 581-582 and 596; and Oil Basins Ltd v Commonwealth [1993] HCA 60 ; (1993) 178 CLR 643 at 649-650. Nonetheless, the Commonwealth submitted that, because of the presently incomplete definition of the issues that will have to be resolved in this Court, the proceeding is premature. In my opinion, this submission does not assist the Commonwealth's application for separate trials. In any proceeding, the process of joining and defining the issues of fact and law that will fall the decision takes some time, and will ordinarily follow the institution of proceedings. The issues in this case are still being defined and there are several reasons why that process is incomplete: the Commonwealth wished to pursue its notice of motion for separate questions at this hearing, which the Court had originally set aside as a hearing at which it was anticipated that there would be a trial of all issues; AWB has filed most but not all its evidence in support of its privilege claims; and the Commissioner has, thus far, taken the stance that it would be inappropriate for him as a submitting respondent to assist the Commonwealth, or the Court, to determine the merits or otherwise of AWB's claims for privilege.


case_outcome: cited

case_text: The legal principles that govern the exercise of the Court's discretion under this rule have been discussed in a number of recent cases, and are well established: see Bass v Permanent Trustee Co Ltd [1999] HCA 9 ; (1999) 198 CLR 334 (' Bass' ) at 355-359; Tepko Pty Ltd v Water Board [2001] HCA 19 ; (2001) 206 CLR 1 (' Tepko' ) at 55; Reading Australia Pty Ltd v Australian Mutual Provident Society (1999) 217 ALR 495 (' Reading' ) at 497-500 [7]-[11]; Direct Factory Outlets Homebush Pty Ltd v Property Council of Australia [2005] FCA 1002 ( 'Direct Factory Outlets' ) at [2]-[4]; Souflett Beheer v AWB Limited [2004] FCA 518 ( 'Souflett Beheer' ) at [19]-[20]; Kockums AB v Commonwealth [2002] FCAFC 138 at [38] - [41] ; SmithKline Beecham (Aust) Pty Ltd v Chipman [2002] FCA 674 (' SmithKline' ) at [35]-[39]; SPI Spirits (Cyprus) Ltd v Diageo Australia Ltd [2006] FCA 14 (' Diageo' ) at [22]-[27]; Save the Ridge Inc v Commonwealth [2005] FCAFC 203 ; (2005) 147 FCR 97 ( 'Save the Ridge' ) at 103-104 [15]-[17]; Rainsford v Victoria [2005] FCAFC 163 ; (2005) 144 FCR 279 (' Rainsford' ) at 291-294 36-44; Director of Fisheries (NT) v Arnhem Land Aboriginal Land Trust [2001] FCA 98 ; (2001) 109 FCR 488 ( 'Director of Fisheries' ) at 521 [139] and 526-527 [163]; and Tallglen Pty Ltd v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130 (' Tallglen' ) at 141-142. 38 The courts have repeatedly warned of the dangers that attend the trial of separate or preliminary questions. In Tepko at 55 [168]-[170], Kirby and Callinan JJ said that the attraction of trials of separate questions are often more chimerical than real; savings in time and expense can prove illusory and the process can generate other problems such as interlocutory appeals and consequent delays. Their Honours concluded that single issue trials should only be embarked upon when their utility, economy and fairness to the parties are beyond question: at 55 [170]. In Direct Factory Outlets , Sackville J said, quite correctly, that the dangers of separate trials are well illustrated by the numerous cases in which the process has miscarried. In Save the Ridge at 103 [15], Black CJ and Moore J said that the O 29 procedure is one that should be adopted with caution as it can be fraught with difficulties. In Tallglen at 141-142, Giles CJ said that the ordering of separate trials must be carefully controlled lest fragmentation of the proceedings (particularly when the exercise of rights of appeal is borne in mind) brings delay, expense and hardship greater than that which the making of the order was intended to avoid. Similar statements can be found in this Court: see eg Novartis Corp Protection Australasia Pty Ltd v Orica Australia Pty Ltd [2001] FCA 1013 at [7] per Stone J. 81 In my opinion, this is not a case in which it can be said that 'the utility, economy and fairness to the parties' of hearing and determining the separate questions posed by the Commonwealth is ' beyond question': Tepko at 55 [170]. 82 Nor is this simply a case where there is a risk that the asserted advantages of separate trials will prove to be illusory. It has not been demonstrated that the proposed separate trial would deliver any savings of time and cost, when compared with a single trial of all issues. If a separate trial were to be ordered, and if that trial resulted in the dismissal of the proceedings on discretionary grounds, the question whether legal professional privilege attaches to the documents would then be susceptible to determination by the Commissioner under s 6AA. The process of determination before the Commissioner would, it seems to me, give rise to issues which would be no less complex than those presently before this Court. In addition, determinations by the Commissioner may not finally resolve the issue of legal professional privilege. The Commonwealth accepted that those determinations could be directly challenged in this Court under s 39B of the Judiciary Act , as the Commissioner has no authority to make determinations that are wrong in law. Alternatively, determinations by the Commissioner could be the subject of judicial review proceedings in this Court pursuant to the provisions of the ADJR Act. 83 The Commonwealth argued that if this Court refused to make a declaration in favour of AWB on discretionary grounds, and thereby allowed the Commissioner to proceed under s 6AA, this Court in any subsequent proceedings under s 39B or the ADJR Act would have the benefit of the issues having been properly joined and defined in a reasoned decision by the Commissioner. The Commonwealth added that the Commissioner's determinations could reduce the number of documents in dispute, either by upholding claims to legal professional privilege or by concluding that particular documents are irrelevant to his inquiries. However, on the material before me, it is equally arguable that the processes of a separate trial of questions 1.1 and 1.2 in this Court, potentially complex proceedings before the Commissioner pursuant to s 6AA, and then further applications to this Court challenging or seeking to review determinations by the Commissioner, will be productive of greater delay and greater costs than would be incurred if the current proceedings proceed in the ordinary way to a trial of all issues. The evidence before me does not satisfy me that the multiple processes envisaged by the Commonwealth are likely to prove to be more efficient, less costly and less protracted.


case_text: The legal principles that govern the exercise of the Court's discretion under this rule have been discussed in a number of recent cases, and are well established: see Bass v Permanent Trustee Co Ltd [1999] HCA 9 ; (1999) 198 CLR 334 (' Bass' ) at 355-359; Tepko Pty Ltd v Water Board [2001] HCA 19 ; (2001) 206 CLR 1 (' Tepko' ) at 55; Reading Australia Pty Ltd v Australian Mutual Provident Society (1999) 217 ALR 495 (' Reading' ) at 497-500 [7]-[11]; Direct Factory Outlets Homebush Pty Ltd v Property Council of Australia [2005] FCA 1002 ( 'Direct Factory Outlets' ) at [2]-[4]; Souflett Beheer v AWB Limited [2004] FCA 518 ( 'Souflett Beheer' ) at [19]-[20]; Kockums AB v Commonwealth [2002] FCAFC 138 at [38] - [41] ; SmithKline Beecham (Aust) Pty Ltd v Chipman [2002] FCA 674 (' SmithKline' ) at [35]-[39]; SPI Spirits (Cyprus) Ltd v Diageo Australia Ltd [2006] FCA 14 (' Diageo' ) at [22]-[27]; Save the Ridge Inc v Commonwealth [2005] FCAFC 203 ; (2005) 147 FCR 97 ( 'Save the Ridge' ) at 103-104 [15]-[17]; Rainsford v Victoria [2005] FCAFC 163 ; (2005) 144 FCR 279 (' Rainsford' ) at 291-294 36-44; Director of Fisheries (NT) v Arnhem Land Aboriginal Land Trust [2001] FCA 98 ; (2001) 109 FCR 488 ( 'Director of Fisheries' ) at 521 [139] and 526-527 [163]; and Tallglen Pty Ltd v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130 (' Tallglen' ) at 141-142. 29 The starting point must be that, as a general rule, all issues of fact and law should be determined at the one time: Reading at 497 [7]; Tallglen at 141-142; and Diageo at [23]. 30 A party seeking the determination of separate questions must satisfy the Court that it is 'just and convenient' for the order to be made: Reading at 499-500 [9]-[10]. 31 It would not be appropriate to separate a question if it would not permit or involve a conclusive or final judicial decision that is based on concrete facts, either established or agreed, for the purpose of quelling a controversy between the parties: Bass at 355 [45] and 357 [49]; and Reading at 498 [8]. In Bass , Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ said at 357 [49]: 'As the answers given by the Full Court and the declaration it made were not based on facts, found or agreed, they were purely hypothetical. At best, the answers do no more than declare that the law dictates a particular result when certain facts in the material or pleadings are established. What those facts are is not stated, nor can they be identified with any precision. They may be all or some only of the facts. What facts are determinative of the legal issue involved in the question asked is left open. Such a result cannot assist the efficient administration of justice. It does not finally resolve the dispute or quell the controversy. Nor does it constitute a step that will in the course of the proceedings necessarily dictate the result of those proceedings. Since the relevant facts are not identified and the existence of some of them is apparently in dispute, the answers given by the Full Court may be of no use at all to the parties and may even mislead them as to their rights. Courts have traditionally declined to state - let alone answer - preliminary questions when the answers will neither determine the rights of the parties nor necessarily lead to the final determination of their rights. The efficient administration of the business of courts is incompatible with answering hypothetical questions which frequently require considerable time and cause considerable expense to the parties, expense which may eventually be seen to be unnecessarily incurred.' 33 In Reading at 498 [8], Branson J said that all of the facts that are on any fairly arguable view relevant to the determination of the separate question must be ascertainable, either as facts assumed to be correct for the purposes of the preliminary determination, or as agreed facts or as facts to be judicially determined. Where the separate question involves the grant or refusal of declaratory relief, the Court must be placed in a position where it can consider all relevant matters before it exercises its discretion to grant or refuse the relief: Reading at 500 [11]. 37 On the other hand, an issue will not generally speaking be 'ripe' for separate determination if it is simply one of two or more alternative ways in which an applicant frames its case, and its determination would leave other significant issues unresolved: Reading at 498 [8]; and Souflett Beheer at [20]. 39 In Reading , Branson J at 499 [8] listed factors that have been taken into account by the courts in making or refusing orders for the trial of a separate question. The relevant factors include the following: (i) whether the separate questions will contribute to the saving of time and cost by substantially narrowing the issues for trial or even lead to the disposal of the action; (ii) whether they will contribute to the settlement of the litigation; (iii) whether they will give rise to significant contested factual issues both at the time of the hearing of the preliminary question and at the time of trial; (iv) whether there will be any significant overlap between the evidence adduced on the hearing of the separate question and at trial; and (v) whether the questions will prolong rather than shorten the litigation. 56 In my opinion, the statements of principle by Branson J in Reading (which are summarised above in paragraph 33) are directly applicable. So too are the principles stated in Bass and Jacobson concerning mixed questions of fact and law. I am not satisfied that all of the necessary facts have been ascertained, agreed or proven so as to permit the judicial determination of question 1.1 as a separate question. Further, I am not satisfied that, on a separate trial of question 1.1, the Court would be placed in a position where it can consider all relevant matters before it exercises its discretion to grant or refuse relief. 57 There is no agreement between AWB and the Commonwealth as to the facts and circumstances which are relevant to the exercise of the Court's discretion. The argument before me made it plain that there would be significant factual disputes if I proceeded with an immediate trial of the separate questions, as requested by the Commonwealth. And there is a real prospect that significant contested factual issues would arise between the parties if question 1.1 were to be set down for preliminary hearing at a future date. In Reading at 499 [8], Branson J said that a factor which tells against the making of an order under O 29 r 2 is that the question may give rise to significant contested factual issues both at the time of the hearing of the preliminary question and at the time of trial. 58 The Commonwealth's argument that s 6AA offers an alternative remedy that would be more efficient and less time-consuming than court proceedings was advanced largely by way of assertion. It was disputed by AWB, and the Commonwealth's contention was not made good by placing relevant facts and evidence before the Court. 59 The Commonwealth submitted that, by virtue of the extensive investigations that have already been conducted by the Commissioner, the Commissioner and those assisting him are already familiar with the factual background to AWB's privilege claims. This was not disputed by AWB. At this stage, however, it is unclear whether, and to what extent, the resolution of the privilege claims will turn on the evidence that has already been gathered by the Commission. AWB has not argued these privilege claims in the Commission or adduced any evidence in support of them before the Commission. Over the past week, pursuant to directions made by this Court, AWB has filed affidavit evidence in support of its privilege claims in this proceeding. The Commonwealth has not suggested that any of this evidence has previously been considered by the Commissioner. In the course of its submissions, the Commonwealth asserted that the Commission is already in possession of much of the evidence necessary to determine AWB's privilege claims. But, again, this assertion was not supported by evidence. On the material before me, I am not in a position to form any view as to the extent to which the evidence already possessed by the Commission will be directly relevant to the determination of AWB's privilege claims. 69 Branson J held that the same principle should be applied where a claim for judicial review is made under the ADJR Act and alternatively under s 39B. In such a case, Branson J said at 130 [47] that 'the power of the Court to dismiss the application summarily where it is clear that no order would be made in favour of the applicant if a hearing were conducted, extends to the alternative claim formulated by reference to s 39B of the Judiciary Act '. Having regard to the fact that the Migration Act provided that the Authority's decision was amenable to full merits review before the Tribunal, and the fact that the applicant had already commenced proceedings in the Tribunal, Branson J concluded that a more convenient and satisfactory remedy existed before the Tribunal. Accordingly, she dismissed the application. 70 McGowan stands for the proposition that, in the context of judicial review, the court has the power to dismiss a judicial review application summarily where it is clear that the court would decline to grant relief at a final hearing. It does not assist in resolving the present application under O 29 r 2. It is not in dispute that this Court has power to refuse declaratory relief in the exercise of its discretion. The only question is whether, in the circumstances of this case, it is appropriate to order that this question be the subject of a separate preliminary trial. That question turns on the particular facts and circumstances of this case.


case_text: The legal principles that govern the exercise of the Court's discretion under this rule have been discussed in a number of recent cases, and are well established: see Bass v Permanent Trustee Co Ltd [1999] HCA 9 ; (1999) 198 CLR 334 (' Bass' ) at 355-359; Tepko Pty Ltd v Water Board [2001] HCA 19 ; (2001) 206 CLR 1 (' Tepko' ) at 55; Reading Australia Pty Ltd v Australian Mutual Provident Society (1999) 217 ALR 495 (' Reading' ) at 497-500 [7]-[11]; Direct Factory Outlets Homebush Pty Ltd v Property Council of Australia [2005] FCA 1002 ( 'Direct Factory Outlets' ) at [2]-[4]; Souflett Beheer v AWB Limited [2004] FCA 518 ( 'Souflett Beheer' ) at [19]-[20]; Kockums AB v Commonwealth [2002] FCAFC 138 at [38] - [41] ; SmithKline Beecham (Aust) Pty Ltd v Chipman [2002] FCA 674 (' SmithKline' ) at [35]-[39]; SPI Spirits (Cyprus) Ltd v Diageo Australia Ltd [2006] FCA 14 (' Diageo' ) at [22]-[27]; Save the Ridge Inc v Commonwealth [2005] FCAFC 203 ; (2005) 147 FCR 97 ( 'Save the Ridge' ) at 103-104 [15]-[17]; Rainsford v Victoria [2005] FCAFC 163 ; (2005) 144 FCR 279 (' Rainsford' ) at 291-294 36-44; Director of Fisheries (NT) v Arnhem Land Aboriginal Land Trust [2001] FCA 98 ; (2001) 109 FCR 488 ( 'Director of Fisheries' ) at 521 [139] and 526-527 [163]; and Tallglen Pty Ltd v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130 (' Tallglen' ) at 141-142. 38 The courts have repeatedly warned of the dangers that attend the trial of separate or preliminary questions. In Tepko at 55 [168]-[170], Kirby and Callinan JJ said that the attraction of trials of separate questions are often more chimerical than real; savings in time and expense can prove illusory and the process can generate other problems such as interlocutory appeals and consequent delays. Their Honours concluded that single issue trials should only be embarked upon when their utility, economy and fairness to the parties are beyond question: at 55 [170]. In Direct Factory Outlets , Sackville J said, quite correctly, that the dangers of separate trials are well illustrated by the numerous cases in which the process has miscarried. In Save the Ridge at 103 [15], Black CJ and Moore J said that the O 29 procedure is one that should be adopted with caution as it can be fraught with difficulties. In Tallglen at 141-142, Giles CJ said that the ordering of separate trials must be carefully controlled lest fragmentation of the proceedings (particularly when the exercise of rights of appeal is borne in mind) brings delay, expense and hardship greater than that which the making of the order was intended to avoid. Similar statements can be found in this Court: see eg Novartis Corp Protection Australasia Pty Ltd v Orica Australia Pty Ltd [2001] FCA 1013 at [7] per Stone J.


case_text: The legal principles that govern the exercise of the Court's discretion under this rule have been discussed in a number of recent cases, and are well established: see Bass v Permanent Trustee Co Ltd [1999] HCA 9 ; (1999) 198 CLR 334 (' Bass' ) at 355-359; Tepko Pty Ltd v Water Board [2001] HCA 19 ; (2001) 206 CLR 1 (' Tepko' ) at 55; Reading Australia Pty Ltd v Australian Mutual Provident Society (1999) 217 ALR 495 (' Reading' ) at 497-500 [7]-[11]; Direct Factory Outlets Homebush Pty Ltd v Property Council of Australia [2005] FCA 1002 ( 'Direct Factory Outlets' ) at [2]-[4]; Souflett Beheer v AWB Limited [2004] FCA 518 ( 'Souflett Beheer' ) at [19]-[20]; Kockums AB v Commonwealth [2002] FCAFC 138 at [38] - [41] ; SmithKline Beecham (Aust) Pty Ltd v Chipman [2002] FCA 674 (' SmithKline' ) at [35]-[39]; SPI Spirits (Cyprus) Ltd v Diageo Australia Ltd [2006] FCA 14 (' Diageo' ) at [22]-[27]; Save the Ridge Inc v Commonwealth [2005] FCAFC 203 ; (2005) 147 FCR 97 ( 'Save the Ridge' ) at 103-104 [15]-[17]; Rainsford v Victoria [2005] FCAFC 163 ; (2005) 144 FCR 279 (' Rainsford' ) at 291-294 36-44; Director of Fisheries (NT) v Arnhem Land Aboriginal Land Trust [2001] FCA 98 ; (2001) 109 FCR 488 ( 'Director of Fisheries' ) at 521 [139] and 526-527 [163]; and Tallglen Pty Ltd v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130 (' Tallglen' ) at 141-142. 37 On the other hand, an issue will not generally speaking be 'ripe' for separate determination if it is simply one of two or more alternative ways in which an applicant frames its case, and its determination would leave other significant issues unresolved: Reading at 498 [8]; and Souflett Beheer at [20].


case_text: The legal principles that govern the exercise of the Court's discretion under this rule have been discussed in a number of recent cases, and are well established: see Bass v Permanent Trustee Co Ltd [1999] HCA 9 ; (1999) 198 CLR 334 (' Bass' ) at 355-359; Tepko Pty Ltd v Water Board [2001] HCA 19 ; (2001) 206 CLR 1 (' Tepko' ) at 55; Reading Australia Pty Ltd v Australian Mutual Provident Society (1999) 217 ALR 495 (' Reading' ) at 497-500 [7]-[11]; Direct Factory Outlets Homebush Pty Ltd v Property Council of Australia [2005] FCA 1002 ( 'Direct Factory Outlets' ) at [2]-[4]; Souflett Beheer v AWB Limited [2004] FCA 518 ( 'Souflett Beheer' ) at [19]-[20]; Kockums AB v Commonwealth [2002] FCAFC 138 at [38] - [41] ; SmithKline Beecham (Aust) Pty Ltd v Chipman [2002] FCA 674 (' SmithKline' ) at [35]-[39]; SPI Spirits (Cyprus) Ltd v Diageo Australia Ltd [2006] FCA 14 (' Diageo' ) at [22]-[27]; Save the Ridge Inc v Commonwealth [2005] FCAFC 203 ; (2005) 147 FCR 97 ( 'Save the Ridge' ) at 103-104 [15]-[17]; Rainsford v Victoria [2005] FCAFC 163 ; (2005) 144 FCR 279 (' Rainsford' ) at 291-294 36-44; Director of Fisheries (NT) v Arnhem Land Aboriginal Land Trust [2001] FCA 98 ; (2001) 109 FCR 488 ( 'Director of Fisheries' ) at 521 [139] and 526-527 [163]; and Tallglen Pty Ltd v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130 (' Tallglen' ) at 141-142.


case_text: The legal principles that govern the exercise of the Court's discretion under this rule have been discussed in a number of recent cases, and are well established: see Bass v Permanent Trustee Co Ltd [1999] HCA 9 ; (1999) 198 CLR 334 (' Bass' ) at 355-359; Tepko Pty Ltd v Water Board [2001] HCA 19 ; (2001) 206 CLR 1 (' Tepko' ) at 55; Reading Australia Pty Ltd v Australian Mutual Provident Society (1999) 217 ALR 495 (' Reading' ) at 497-500 [7]-[11]; Direct Factory Outlets Homebush Pty Ltd v Property Council of Australia [2005] FCA 1002 ( 'Direct Factory Outlets' ) at [2]-[4]; Souflett Beheer v AWB Limited [2004] FCA 518 ( 'Souflett Beheer' ) at [19]-[20]; Kockums AB v Commonwealth [2002] FCAFC 138 at [38] - [41] ; SmithKline Beecham (Aust) Pty Ltd v Chipman [2002] FCA 674 (' SmithKline' ) at [35]-[39]; SPI Spirits (Cyprus) Ltd v Diageo Australia Ltd [2006] FCA 14 (' Diageo' ) at [22]-[27]; Save the Ridge Inc v Commonwealth [2005] FCAFC 203 ; (2005) 147 FCR 97 ( 'Save the Ridge' ) at 103-104 [15]-[17]; Rainsford v Victoria [2005] FCAFC 163 ; (2005) 144 FCR 279 (' Rainsford' ) at 291-294 36-44; Director of Fisheries (NT) v Arnhem Land Aboriginal Land Trust [2001] FCA 98 ; (2001) 109 FCR 488 ( 'Director of Fisheries' ) at 521 [139] and 526-527 [163]; and Tallglen Pty Ltd v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130 (' Tallglen' ) at 141-142. 35 The cases indicate that great caution needs to be exercised in formulating a separate question for determination on the basis of assumed facts. The assumed facts may prove to be incomplete or insufficiently precise: Director of Fisheries at 521 [139] and 526 [163]. The parties may also have different views concerning the effect or duration of the assumptions; for instance, they may consider that they can depart from the assumptions and re-agitate the facts in another part of the case: see SmithKline at [23], [27] and [89]. 36 In CBS Productions Pty Ltd v O'Neill [1985] 1 NSWLR 601 at 606, Kirby P said that a matter is 'ripe' for separate and preliminary determination where it is a central issue in contention between the parties, and its resolution will either obviate the necessity of litigation altogether or substantially narrow the field of controversy. This proposition assumes, of course, that the factual foundation for the determination of the issue has been resolved: see Rocklea Spinning Mills v Anti-Dumping Authority (1995) 56 FCR 406; and SmithKline at [35]-[39]. In Tallglen , Giles CJ in the Commercial Division said at 141-142 that in the ordinary course all issues in proceedings should be decided at the one time, but the separate decision of a question may be appropriate where, for example, the decision of a question is critical to the outcome of the proceedings and (at least if decided in one way) will bring the proceedings to an end. His Honour added that, in particular circumstances, the separate decision of a question may be appropriate even if it will not bring the proceedings to an end, such as where there is a strong prospect that the parties will agree upon the result when the core of the dispute is decided or where the decision will obviate unnecessary and expensive hearings of other questions.


case_text: The legal principles that govern the exercise of the Court's discretion under this rule have been discussed in a number of recent cases, and are well established: see Bass v Permanent Trustee Co Ltd [1999] HCA 9 ; (1999) 198 CLR 334 (' Bass' ) at 355-359; Tepko Pty Ltd v Water Board [2001] HCA 19 ; (2001) 206 CLR 1 (' Tepko' ) at 55; Reading Australia Pty Ltd v Australian Mutual Provident Society (1999) 217 ALR 495 (' Reading' ) at 497-500 [7]-[11]; Direct Factory Outlets Homebush Pty Ltd v Property Council of Australia [2005] FCA 1002 ( 'Direct Factory Outlets' ) at [2]-[4]; Souflett Beheer v AWB Limited [2004] FCA 518 ( 'Souflett Beheer' ) at [19]-[20]; Kockums AB v Commonwealth [2002] FCAFC 138 at [38] - [41] ; SmithKline Beecham (Aust) Pty Ltd v Chipman [2002] FCA 674 (' SmithKline' ) at [35]-[39]; SPI Spirits (Cyprus) Ltd v Diageo Australia Ltd [2006] FCA 14 (' Diageo' ) at [22]-[27]; Save the Ridge Inc v Commonwealth [2005] FCAFC 203 ; (2005) 147 FCR 97 ( 'Save the Ridge' ) at 103-104 [15]-[17]; Rainsford v Victoria [2005] FCAFC 163 ; (2005) 144 FCR 279 (' Rainsford' ) at 291-294 36-44; Director of Fisheries (NT) v Arnhem Land Aboriginal Land Trust [2001] FCA 98 ; (2001) 109 FCR 488 ( 'Director of Fisheries' ) at 521 [139] and 526-527 [163]; and Tallglen Pty Ltd v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130 (' Tallglen' ) at 141-142. 29 The starting point must be that, as a general rule, all issues of fact and law should be determined at the one time: Reading at 497 [7]; Tallglen at 141-142; and Diageo at [23].


case_title: Save the Ridge Inc v Commonwealth [2005] FCAFC 203 ; (2005) 147 FCR 97


case_outcome: discussed

case_text: The legal principles that govern the exercise of the Court's discretion under this rule have been discussed in a number of recent cases, and are well established: see Bass v Permanent Trustee Co Ltd [1999] HCA 9 ; (1999) 198 CLR 334 (' Bass' ) at 355-359; Tepko Pty Ltd v Water Board [2001] HCA 19 ; (2001) 206 CLR 1 (' Tepko' ) at 55; Reading Australia Pty Ltd v Australian Mutual Provident Society (1999) 217 ALR 495 (' Reading' ) at 497-500 [7]-[11]; Direct Factory Outlets Homebush Pty Ltd v Property Council of Australia [2005] FCA 1002 ( 'Direct Factory Outlets' ) at [2]-[4]; Souflett Beheer v AWB Limited [2004] FCA 518 ( 'Souflett Beheer' ) at [19]-[20]; Kockums AB v Commonwealth [2002] FCAFC 138 at [38] - [41] ; SmithKline Beecham (Aust) Pty Ltd v Chipman [2002] FCA 674 (' SmithKline' ) at [35]-[39]; SPI Spirits (Cyprus) Ltd v Diageo Australia Ltd [2006] FCA 14 (' Diageo' ) at [22]-[27]; Save the Ridge Inc v Commonwealth [2005] FCAFC 203 ; (2005) 147 FCR 97 ( 'Save the Ridge' ) at 103-104 [15]-[17]; Rainsford v Victoria [2005] FCAFC 163 ; (2005) 144 FCR 279 (' Rainsford' ) at 291-294 36-44; Director of Fisheries (NT) v Arnhem Land Aboriginal Land Trust [2001] FCA 98 ; (2001) 109 FCR 488 ( 'Director of Fisheries' ) at 521 [139] and 526-527 [163]; and Tallglen Pty Ltd v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130 (' Tallglen' ) at 141-142. 34 In Bass at 359 [56], the High Court said that it would be contrary to the judicial process and no part of the judicial power to effect a determination of rights by applying the law to facts which are neither agreed nor determined by reference to the evidence in the case. The Full Federal Court applied this principle in Rainsford at 291 [36] and Director of Fisheries at 526 [163]. In Rainsford at 291 [36], Kenny J said that, in order for a court exercising federal jurisdiction to utilise the separate questions procedure, either the parties must agree on the relevant facts or the court must determine the facts before deciding the question. 40 In Rainsford , Kenny J pointed out at 292 [39] that there is a clear difference between the separate questions procedure under O 29 r 2 and an application under O 20 r 2 for the summary dismissal of a proceeding or a cause of action: in the latter case, the issue would be whether the claim is so obviously untenable that it cannot possibly succeed: see General Steel Industries Ltd v Commissioner for Railways [1964] HCA 69 ; (1964) 112 CLR 125; and Australian Ocean Line Pty Ltd v West Australian Newspapers Limited (1983) 47 ALR 497 at 499 per Toohey J. 41 In my opinion, the application of the foregoing legal principles leads inexorably to the conclusion that the Commonwealth's application under O 29 r 2 must be dismissed. I have concluded that it would not be just and convenient to make any of the orders sought by the Commonwealth under O 29 r 2. Indeed, I am satisfied that it would be inappropriate to do so. 42 My reasons for so concluding are set forth below. They address in turn matters which are discretely relevant to questions 1.1 and then 1.2, before canvassing matters which are relevant to both questions.


case_text: The legal principles that govern the exercise of the Court's discretion under this rule have been discussed in a number of recent cases, and are well established: see Bass v Permanent Trustee Co Ltd [1999] HCA 9 ; (1999) 198 CLR 334 (' Bass' ) at 355-359; Tepko Pty Ltd v Water Board [2001] HCA 19 ; (2001) 206 CLR 1 (' Tepko' ) at 55; Reading Australia Pty Ltd v Australian Mutual Provident Society (1999) 217 ALR 495 (' Reading' ) at 497-500 [7]-[11]; Direct Factory Outlets Homebush Pty Ltd v Property Council of Australia [2005] FCA 1002 ( 'Direct Factory Outlets' ) at [2]-[4]; Souflett Beheer v AWB Limited [2004] FCA 518 ( 'Souflett Beheer' ) at [19]-[20]; Kockums AB v Commonwealth [2002] FCAFC 138 at [38] - [41] ; SmithKline Beecham (Aust) Pty Ltd v Chipman [2002] FCA 674 (' SmithKline' ) at [35]-[39]; SPI Spirits (Cyprus) Ltd v Diageo Australia Ltd [2006] FCA 14 (' Diageo' ) at [22]-[27]; Save the Ridge Inc v Commonwealth [2005] FCAFC 203 ; (2005) 147 FCR 97 ( 'Save the Ridge' ) at 103-104 [15]-[17]; Rainsford v Victoria [2005] FCAFC 163 ; (2005) 144 FCR 279 (' Rainsford' ) at 291-294 36-44; Director of Fisheries (NT) v Arnhem Land Aboriginal Land Trust [2001] FCA 98 ; (2001) 109 FCR 488 ( 'Director of Fisheries' ) at 521 [139] and 526-527 [163]; and Tallglen Pty Ltd v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130 (' Tallglen' ) at 141-142. 34 In Bass at 359 [56], the High Court said that it would be contrary to the judicial process and no part of the judicial power to effect a determination of rights by applying the law to facts which are neither agreed nor determined by reference to the evidence in the case. The Full Federal Court applied this principle in Rainsford at 291 [36] and Director of Fisheries at 526 [163]. In Rainsford at 291 [36], Kenny J said that, in order for a court exercising federal jurisdiction to utilise the separate questions procedure, either the parties must agree on the relevant facts or the court must determine the facts before deciding the question. 35 The cases indicate that great caution needs to be exercised in formulating a separate question for determination on the basis of assumed facts. The assumed facts may prove to be incomplete or insufficiently precise: Director of Fisheries at 521 [139] and 526 [163]. The parties may also have different views concerning the effect or duration of the assumptions; for instance, they may consider that they can depart from the assumptions and re-agitate the facts in another part of the case: see SmithKline at [23], [27] and [89].


case_text: The legal principles that govern the exercise of the Court's discretion under this rule have been discussed in a number of recent cases, and are well established: see Bass v Permanent Trustee Co Ltd [1999] HCA 9 ; (1999) 198 CLR 334 (' Bass' ) at 355-359; Tepko Pty Ltd v Water Board [2001] HCA 19 ; (2001) 206 CLR 1 (' Tepko' ) at 55; Reading Australia Pty Ltd v Australian Mutual Provident Society (1999) 217 ALR 495 (' Reading' ) at 497-500 [7]-[11]; Direct Factory Outlets Homebush Pty Ltd v Property Council of Australia [2005] FCA 1002 ( 'Direct Factory Outlets' ) at [2]-[4]; Souflett Beheer v AWB Limited [2004] FCA 518 ( 'Souflett Beheer' ) at [19]-[20]; Kockums AB v Commonwealth [2002] FCAFC 138 at [38] - [41] ; SmithKline Beecham (Aust) Pty Ltd v Chipman [2002] FCA 674 (' SmithKline' ) at [35]-[39]; SPI Spirits (Cyprus) Ltd v Diageo Australia Ltd [2006] FCA 14 (' Diageo' ) at [22]-[27]; Save the Ridge Inc v Commonwealth [2005] FCAFC 203 ; (2005) 147 FCR 97 ( 'Save the Ridge' ) at 103-104 [15]-[17]; Rainsford v Victoria [2005] FCAFC 163 ; (2005) 144 FCR 279 (' Rainsford' ) at 291-294 36-44; Director of Fisheries (NT) v Arnhem Land Aboriginal Land Trust [2001] FCA 98 ; (2001) 109 FCR 488 ( 'Director of Fisheries' ) at 521 [139] and 526-527 [163]; and Tallglen Pty Ltd v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130 (' Tallglen' ) at 141-142. 29 The starting point must be that, as a general rule, all issues of fact and law should be determined at the one time: Reading at 497 [7]; Tallglen at 141-142; and Diageo at [23]. 36 In CBS Productions Pty Ltd v O'Neill [1985] 1 NSWLR 601 at 606, Kirby P said that a matter is 'ripe' for separate and preliminary determination where it is a central issue in contention between the parties, and its resolution will either obviate the necessity of litigation altogether or substantially narrow the field of controversy. This proposition assumes, of course, that the factual foundation for the determination of the issue has been resolved: see Rocklea Spinning Mills v Anti-Dumping Authority (1995) 56 FCR 406; and SmithKline at [35]-[39]. In Tallglen , Giles CJ in the Commercial Division said at 141-142 that in the ordinary course all issues in proceedings should be decided at the one time, but the separate decision of a question may be appropriate where, for example, the decision of a question is critical to the outcome of the proceedings and (at least if decided in one way) will bring the proceedings to an end. His Honour added that, in particular circumstances, the separate decision of a question may be appropriate even if it will not bring the proceedings to an end, such as where there is a strong prospect that the parties will agree upon the result when the core of the dispute is decided or where the decision will obviate unnecessary and expensive hearings of other questions. 38 The courts have repeatedly warned of the dangers that attend the trial of separate or preliminary questions. In Tepko at 55 [168]-[170], Kirby and Callinan JJ said that the attraction of trials of separate questions are often more chimerical than real; savings in time and expense can prove illusory and the process can generate other problems such as interlocutory appeals and consequent delays. Their Honours concluded that single issue trials should only be embarked upon when their utility, economy and fairness to the parties are beyond question: at 55 [170]. In Direct Factory Outlets , Sackville J said, quite correctly, that the dangers of separate trials are well illustrated by the numerous cases in which the process has miscarried. In Save the Ridge at 103 [15], Black CJ and Moore J said that the O 29 procedure is one that should be adopted with caution as it can be fraught with difficulties. In Tallglen at 141-142, Giles CJ said that the ordering of separate trials must be carefully controlled lest fragmentation of the proceedings (particularly when the exercise of rights of appeal is borne in mind) brings delay, expense and hardship greater than that which the making of the order was intended to avoid. Similar statements can be found in this Court: see eg Novartis Corp Protection Australasia Pty Ltd v Orica Australia Pty Ltd [2001] FCA 1013 at [7] per Stone J.


case_title: Jacobson v Ross [1995] 1 VR 337

case_text: The separate question procedure poses special problems where the preliminary question is one of mixed fact and law: Bass at 358 [53]. In that situation, it is essential that there be precision both in formulating the question and specifying the facts upon which it is to be decided for the reasons given by Brooking J in Jacobson v Ross [1995] 1 VR 337 at 341. 46 While the refusal of declaratory relief on discretionary grounds will always be heavily dependent on the facts of the particular case, the discretion must be exercised within a framework of relevant legal principle. The cases afford guidance as to the way in which the discretion is to be exercised. In this sense, the question whether declaratory relief should be refused as a matter of discretion raises questions of fact and law, albeit heavily weighted towards the former. The separation of such a question poses special problems for the reasons stated by the High Court in Bass at 358 [53] and by Brooking J in Jacobson at 341. 56 In my opinion, the statements of principle by Branson J in Reading (which are summarised above in paragraph 33) are directly applicable. So too are the principles stated in Bass and Jacobson concerning mixed questions of fact and law. I am not satisfied that all of the necessary facts have been ascertained, agreed or proven so as to permit the judicial determination of question 1.1 as a separate question. Further, I am not satisfied that, on a separate trial of question 1.1, the Court would be placed in a position where it can consider all relevant matters before it exercises its discretion to grant or refuse relief.


case_text: In CBS Productions Pty Ltd v O'Neill [1985] 1 NSWLR 601 at 606, Kirby P said that a matter is 'ripe' for separate and preliminary determination where it is a central issue in contention between the parties, and its resolution will either obviate the necessity of litigation altogether or substantially narrow the field of controversy. This proposition assumes, of course, that the factual foundation for the determination of the issue has been resolved: see Rocklea Spinning Mills v Anti-Dumping Authority (1995) 56 FCR 406; and SmithKline at [35]-[39]. In Tallglen , Giles CJ in the Commercial Division said at 141-142 that in the ordinary course all issues in proceedings should be decided at the one time, but the separate decision of a question may be appropriate where, for example, the decision of a question is critical to the outcome of the proceedings and (at least if decided in one way) will bring the proceedings to an end. His Honour added that, in particular circumstances, the separate decision of a question may be appropriate even if it will not bring the proceedings to an end, such as where there is a strong prospect that the parties will agree upon the result when the core of the dispute is decided or where the decision will obviate unnecessary and expensive hearings of other questions.


case_title: Rocklea Spinning Mills v Anti-Dumping Authority (1995) 56 FCR 406


case_text: The courts have repeatedly warned of the dangers that attend the trial of separate or preliminary questions. In Tepko at 55 [168]-[170], Kirby and Callinan JJ said that the attraction of trials of separate questions are often more chimerical than real; savings in time and expense can prove illusory and the process can generate other problems such as interlocutory appeals and consequent delays. Their Honours concluded that single issue trials should only be embarked upon when their utility, economy and fairness to the parties are beyond question: at 55 [170]. In Direct Factory Outlets , Sackville J said, quite correctly, that the dangers of separate trials are well illustrated by the numerous cases in which the process has miscarried. In Save the Ridge at 103 [15], Black CJ and Moore J said that the O 29 procedure is one that should be adopted with caution as it can be fraught with difficulties. In Tallglen at 141-142, Giles CJ said that the ordering of separate trials must be carefully controlled lest fragmentation of the proceedings (particularly when the exercise of rights of appeal is borne in mind) brings delay, expense and hardship greater than that which the making of the order was intended to avoid. Similar statements can be found in this Court: see eg Novartis Corp Protection Australasia Pty Ltd v Orica Australia Pty Ltd [2001] FCA 1013 at [7] per Stone J.


case_text: It is a common misconception that a declaration is an equitable remedy. It is not; it is a statutory remedy that is conferred in terms emphasising that its grant or refusal is within the discretion of the Court: see Tito v Waddell (No 2) [1977] Ch 106 at 259; Mayfair Trading Co Pty Ltd v Dreyer [1958] HCA 55 ; [1958] 101 CLR 428 at 454 per Dixon CJ; and Meagher, Gummow and Lehane, Equity Doctrines and Remedies, 4 th ed, Butterworths, 2002, at [19-159]. The discretion is to be exercised according to the facts and circumstances of the individual case, and the considerations that may be relevant to the exercise of the discretion are 'so numerous that it is not possible to enumerate them: see Salmar Holdings Pty Ltd v Hornsby Shire Council [1971] 1 NSWLR 192 (' Salmar' ) at 203. 48 The Commonwealth relies upon Forster v Jododex Australia Pty Ltd [1972] HCA 61 ; (1972) 127 CLR 421 (' Forster' ) and Salmar for its contention that the Court might refuse declaratory relief where the issue is one which the Parliament has entrusted to a specialist body or tribunal, or a more convenient or satisfactory remedy otherwise exists. In Forster , the Court in fact granted declaratory relief, notwithstanding the existence of pending proceedings before the mining warden in which the same issue would arise for decision. The leading judgment was delivered by Gibbs J, with whom McTiernan, Stephen and Mason JJ relevantly agreed. Having held that nothing in the provisions of the Mining Act 1906 (NSW) excluded Jododex's right to apply to the Court for a determination of its legal rights (at 436-437), Gibbs J turned to the Court's discretion to make a declaration at 438-439: 'The question whether the Court should make a declaration which would have the effect of deciding a question in issue in pending proceedings may often be of some difficulty. It is of course important that the proceedings in the present case were not pending in an ordinary court. However, there were some obvious reasons why a judge should hesitate before intervening when the matter was about to come before the warden. It was, of course, possible that the warden would give effect to the contention that Jododex held a valid exploration license and would therefore refuse to grant any authority to enter to the appellant. The warden might have declined to grant the appellant's applications for some other reason. Moreover, if it were ultimately held that Jododex's contention ought to fail, the proceedings before the warden would have been delayed and the appellant would have been put to additional cost and inconvenience. On the other hand, to determine the existence of the right which Jododex sought to establish, it was necessary to ascertain the true meaning and effect of a statutory provision and of an instrument in statutory form. These were pure questions of construction such as would appropriately be decided in the Supreme Court. They were difficult questions, and apparently rights of considerable value depended on the answers to them. When all these conflicting considerations are weighed, it seems to me that it cannot be said that it was not a proper exercise of judicial discretion to proceed to make a declaration in all the circumstances of the case.' The fact that Jododex was seeking a declaration to forestall a possible contrary decision by the warden was not regarded as an objection to the grant of declaratory relief: per Gibbs J at 437. 50 In Salmar at 202-203, Mason JA said: 'In the context of this case it is, however, important to note that the courts have regarded the availability of another suitable remedy as a matter which is relevant to the exercise of the discretion. The significance and weight of this consideration becomes the greater if it appears that questions of the kind sought to be determined ordinarily fall within the jurisdiction of a court or tribunal having a special capacity or experience in dealing with questions of that kind. It is clearly undesirable that there should be a departure from the ordinary and established course of deciding matters in the absence of a discernible advantage to be derived from that departure. But it may nevertheless appear, as I think it does in this case, that the question for determination is one of general significance readily susceptible of decision by the Equity Court, and that there is advantage in having the question determined by that Court in preference to awaiting the outcome of a decision in accordance with the established procedure. In this case, so it seems to me, advantage or utility lies with the making of a declaration. The question is, as I have remarked, one of general significance of a kind which the Equity Court is frequently called upon to decide.' 51 In its submissions, AWB did not dispute the basic proposition that the existence of another suitable remedy is a matter which would be relevant to the exercise of the Court's discretion. However, AWB disputed that the procedures now available under s 6AA constituted another suitable remedy, and that the Commission can be regarded as, or equated with, a specialist tribunal of a kind described in Forster and Salmar . AWB also said that a judicial determination of the subsistence of legal professional privilege offered it discernible advantages which it is entitled to pursue.


case_text: The Commonwealth relies upon Forster v Jododex Australia Pty Ltd [1972] HCA 61 ; (1972) 127 CLR 421 (' Forster' ) and Salmar for its contention that the Court might refuse declaratory relief where the issue is one which the Parliament has entrusted to a specialist body or tribunal, or a more convenient or satisfactory remedy otherwise exists. In Forster , the Court in fact granted declaratory relief, notwithstanding the existence of pending proceedings before the mining warden in which the same issue would arise for decision. The leading judgment was delivered by Gibbs J, with whom McTiernan, Stephen and Mason JJ relevantly agreed. Having held that nothing in the provisions of the Mining Act 1906 (NSW) excluded Jododex's right to apply to the Court for a determination of its legal rights (at 436-437), Gibbs J turned to the Court's discretion to make a declaration at 438-439: 'The question whether the Court should make a declaration which would have the effect of deciding a question in issue in pending proceedings may often be of some difficulty. It is of course important that the proceedings in the present case were not pending in an ordinary court. However, there were some obvious reasons why a judge should hesitate before intervening when the matter was about to come before the warden. It was, of course, possible that the warden would give effect to the contention that Jododex held a valid exploration license and would therefore refuse to grant any authority to enter to the appellant. The warden might have declined to grant the appellant's applications for some other reason. Moreover, if it were ultimately held that Jododex's contention ought to fail, the proceedings before the warden would have been delayed and the appellant would have been put to additional cost and inconvenience. On the other hand, to determine the existence of the right which Jododex sought to establish, it was necessary to ascertain the true meaning and effect of a statutory provision and of an instrument in statutory form. These were pure questions of construction such as would appropriately be decided in the Supreme Court. They were difficult questions, and apparently rights of considerable value depended on the answers to them. When all these conflicting considerations are weighed, it seems to me that it cannot be said that it was not a proper exercise of judicial discretion to proceed to make a declaration in all the circumstances of the case.' The fact that Jododex was seeking a declaration to forestall a possible contrary decision by the warden was not regarded as an objection to the grant of declaratory relief: per Gibbs J at 437. 49 The Commonwealth's argument is principally founded upon statements made by Walsh J in his dissenting judgment at 427, as follows: 'In my opinion, when a special tribunal is appointed by a statute to deal with matters arising under its provisions and to determine disputes concerning the granting of rights or privileges which are dependent entirely upon the statute, then as a general rule and in the absence of some special reason for intervention, the special procedures laid down by the statute should be allowed to take their course and should not be displaced by the making of declaratory orders concerning the respective rights of the parties under the statute. In other words, I think that it will ordinarily be a wise exercise by the Supreme Court of the discretion which it has under s. 10 of the Equity Act to decline to undertake the tasks which have been committed by the Parliament to a specialized tribunal. Whilst I agree with Gibbs J. that s. 10 ought not to be construed as if it contained words excepting from its operation cases arising under the Act, I think that the procedure set out in the Act itself should be regarded as the normal procedure for dealing with such cases.' Walsh J acknowledged that grounds for judicial intervention might exist if the decisions of the warden were immune from judicial review. 51 In its submissions, AWB did not dispute the basic proposition that the existence of another suitable remedy is a matter which would be relevant to the exercise of the Court's discretion. However, AWB disputed that the procedures now available under s 6AA constituted another suitable remedy, and that the Commission can be regarded as, or equated with, a specialist tribunal of a kind described in Forster and Salmar . AWB also said that a judicial determination of the subsistence of legal professional privilege offered it discernible advantages which it is entitled to pursue.