case_text: It is common ground that any order on the motion would be an interlocutory order, so that ordinary principles governing summary dismissal of a proceeding should apply. That is, an application under s 84C should be approached with caution and should be allowed only where a clear case for summary dismissal has been made: Williams v Grant [2004] FCAFC 178 at [48] - [49] per Lander J (with whom North and Dowsett JJ agreed); Bodney v Bropho [2004] FCAFC 226 ; (2004) 140 FCR 77 at 89 [51] per Stone J. The general approach, therefore, is consistent with the approach of Courts in other applications to summarily dismiss proceedings, namely that they should be dismissed only in very clear cases: Dey v Victorian Railways Commissioner [1949] HCA 1 ; (1949) 78 CLR 62 at 91 per Dixon J; General Steel Industries Inc v Commissioner for Railways [1964] HCA 69 ; (1964) 112 CLR 125 at 129. As in Williams v Grant at [84] and [87] per Lander J, the first applicants seeking to strike out the Town of Batchelor No 2 application under s 84C have the onus and responsibility of establishing that the second applicants were not authorised by the native title claim group to bring that claim, and so to make out a very clear case of want of authorisation, or a clear failure to comply with one or other of the requirements of ss 61 , 61A or 62 .


case_outcome: referred to

case_text: It is common ground that any order on the motion would be an interlocutory order, so that ordinary principles governing summary dismissal of a proceeding should apply. That is, an application under s 84C should be approached with caution and should be allowed only where a clear case for summary dismissal has been made: Williams v Grant [2004] FCAFC 178 at [48] - [49] per Lander J (with whom North and Dowsett JJ agreed); Bodney v Bropho [2004] FCAFC 226 ; (2004) 140 FCR 77 at 89 [51] per Stone J. The general approach, therefore, is consistent with the approach of Courts in other applications to summarily dismiss proceedings, namely that they should be dismissed only in very clear cases: Dey v Victorian Railways Commissioner [1949] HCA 1 ; (1949) 78 CLR 62 at 91 per Dixon J; General Steel Industries Inc v Commissioner for Railways [1964] HCA 69 ; (1964) 112 CLR 125 at 129. As in Williams v Grant at [84] and [87] per Lander J, the first applicants seeking to strike out the Town of Batchelor No 2 application under s 84C have the onus and responsibility of establishing that the second applicants were not authorised by the native title claim group to bring that claim, and so to make out a very clear case of want of authorisation, or a clear failure to comply with one or other of the requirements of ss 61 , 61A or 62 . 14 It is, therefore, hard to resist the temptation of determining such a fundamental issue as authorisation before a full trial of the native title determination application with the very substantial resources which are then involved. To do so has the attraction of expedition and economy. Certain recent decisions of the Court have illustrated that proper authorisation is a matter which should not be overlooked, and the possibility of a challenge, at an early point in the proceeding: see e.g. Risk v Northern Territory [2006] FCA 404 ; Harrington-Smith v Western Australia (No 9) (2007) 238 ALR 1. The mere complexity of an issue, or the fact that extensive argument may be necessary to demonstrate that the claim is untenable, is not a reason not to dispose of an application summarily: General Steel Industries Inc v Commissioner for Railways (NSW) 112 CLR at 130 per Barwick CJ.


case_outcome: discussed

case_text: In Landers v South Australia [2003] FCA 264 ; (2003) 128 FCR 495 at 497 [7] I said: ... The power summarily to dismiss an application should be exercised only where the claim as expressed is untenable, and upon the version of the evidence favourable to the applicant. The Court should not, upon such an application, generally undertake any weighing of conflicting evidence or of the inferences which might be drawn from such evidence: Webster v Lampard [1993] HCA 57 ; (1993) 177 CLR 598 at 602-603. 36 In my view, on his own material, those two clans are a mere subset of the FRBG. It is therefore inappropriate that they should constitute the native title claim group: see e.g. Ward v Western Australia [1998] FCA 1478 ; (1998) 159 ALR 483 at 581; Risk v National Native Title Tribunal [2000] FCA 1589 at [60] ; Tilmouth v Northern Territory [2001] FCA 820 ; [2001] 109 FCR 240 at 241-242; Dieri People v South Australia [2003] FCA 187 ; (2003) 127 FCR 364 at [55] ; Landers v South Australia [2003] FCA 264 ; [2003] 128 FCR 495 at 504; and Harrington-Smith v Western Australia (No 9) (2007) 238 ALR 1 at [1209]-[1217].


case_title: Quall v Risk [2001] FCA 389

case_text: As has been often observed, proper authorisation is fundamental to the legitimacy of native title applications (see e.g. Quall v Risk [2001] FCA 378 at [67] ; Dieri People v South Australia [2003] FCA 187 ; (2003) 127 FCR 364 at [55] ; Quandamooka People (No 1) v State of Queensland [2002] FCA 259 at [25] ; Moran v Minister of Land and Water Conservation for New South Wales [1999] FCA 1637 at [48] ; Daniel v Western Australia [2002] FCA 1147 at [11] .


case_text: As has been often observed, proper authorisation is fundamental to the legitimacy of native title applications (see e.g. Quall v Risk [2001] FCA 378 at [67] ; Dieri People v South Australia [2003] FCA 187 ; (2003) 127 FCR 364 at [55] ; Quandamooka People (No 1) v State of Queensland [2002] FCA 259 at [25] ; Moran v Minister of Land and Water Conservation for New South Wales [1999] FCA 1637 at [48] ; Daniel v Western Australia [2002] FCA 1147 at [11] . 36 In my view, on his own material, those two clans are a mere subset of the FRBG. It is therefore inappropriate that they should constitute the native title claim group: see e.g. Ward v Western Australia [1998] FCA 1478 ; (1998) 159 ALR 483 at 581; Risk v National Native Title Tribunal [2000] FCA 1589 at [60] ; Tilmouth v Northern Territory [2001] FCA 820 ; [2001] 109 FCR 240 at 241-242; Dieri People v South Australia [2003] FCA 187 ; (2003) 127 FCR 364 at [55] ; Landers v South Australia [2003] FCA 264 ; [2003] 128 FCR 495 at 504; and Harrington-Smith v Western Australia (No 9) (2007) 238 ALR 1 at [1209]-[1217].


case_title: Quandamooka People (No 1) v State of Queensland [2002] FCA 259


case_title: Moran v Minister of Land and Water Conservation for New South Wales [1999] FCA 1637


case_title: Daniel v Western Australia [2002] FCA 1147


case_text: It is, therefore, hard to resist the temptation of determining such a fundamental issue as authorisation before a full trial of the native title determination application with the very substantial resources which are then involved. To do so has the attraction of expedition and economy. Certain recent decisions of the Court have illustrated that proper authorisation is a matter which should not be overlooked, and the possibility of a challenge, at an early point in the proceeding: see e.g. Risk v Northern Territory [2006] FCA 404 ; Harrington-Smith v Western Australia (No 9) (2007) 238 ALR 1. The mere complexity of an issue, or the fact that extensive argument may be necessary to demonstrate that the claim is untenable, is not a reason not to dispose of an application summarily: General Steel Industries Inc v Commissioner for Railways (NSW) 112 CLR at 130 per Barwick CJ.


case_text: It is, therefore, hard to resist the temptation of determining such a fundamental issue as authorisation before a full trial of the native title determination application with the very substantial resources which are then involved. To do so has the attraction of expedition and economy. Certain recent decisions of the Court have illustrated that proper authorisation is a matter which should not be overlooked, and the possibility of a challenge, at an early point in the proceeding: see e.g. Risk v Northern Territory [2006] FCA 404 ; Harrington-Smith v Western Australia (No 9) (2007) 238 ALR 1. The mere complexity of an issue, or the fact that extensive argument may be necessary to demonstrate that the claim is untenable, is not a reason not to dispose of an application summarily: General Steel Industries Inc v Commissioner for Railways (NSW) 112 CLR at 130 per Barwick CJ. 15 Section 84C(2) requires the Court to consider an application under s 84C(1) before any further proceedings take place in relation to the main application. But that does not require the Court to hear and determine the question as to whether the application has, in fact, been authorised as required by s 251B in all cases. It is only where the application is obviously without merit, that is, where there is no realistic prospect on the material before the Court of the authorisation being shown to have existed at the time it was purportedly granted, that an order will be made summarily dismissing or striking out the main application under s 84C. Sometimes an applicant faced with an application under s 84C may seek to amend the application to cure an identified deficiency (as discussed by Lander J in Williams v Grant at [57]). Where the application is not clearly without merit, so that it is not dismissed summarily or struck out, the Court may consider directing that an application under s 84C be heard and determined at the same time as the main application. That is a course of action which Wilcox J in Bodney v State of Western Australia [2003] FCA 890 at [45] suggested. The Court may also consider directing that the question of authorisation be heard and determined as a separate question, and be heard and determined prior to the hearing of the main application, under O 29 of the Federal Court Rules . That is a matter for each particular case and its particular circumstances. Whether such an order were appropriate would depend upon the extent to which there would be an overlap in the evidence likely to be called relating to authorisation and on the main application and a range of factors. The apparent attraction of expedition and economy may be misleading. Very often, the proposed evidence of authorisation is to be given by persons who also will give "connection" evidence and evidence of traditional laws and customs. There are often sound reasons in such circumstances why the separate trial of issues should not be ordered: Rocklea Spinning Mills Pty Ltd v Anti-Dumping Authority (1995) 56 FCR 406 ; Energy Australia v Australian Energy Ltd [2001] FCA 1049 at [8] per Stone J. There are also countervailing considerations of potential delay through splitting of issues and the separate processes which follow that course: Tallglen Pty Ltd v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130. So, not uncommonly, as occurred in both Risk and Harrington-Smith (referred to above) the issue of authorisation was heard and determined as part of the principal hearing of the main application. 36 In my view, on his own material, those two clans are a mere subset of the FRBG. It is therefore inappropriate that they should constitute the native title claim group: see e.g. Ward v Western Australia [1998] FCA 1478 ; (1998) 159 ALR 483 at 581; Risk v National Native Title Tribunal [2000] FCA 1589 at [60] ; Tilmouth v Northern Territory [2001] FCA 820 ; [2001] 109 FCR 240 at 241-242; Dieri People v South Australia [2003] FCA 187 ; (2003) 127 FCR 364 at [55] ; Landers v South Australia [2003] FCA 264 ; [2003] 128 FCR 495 at 504; and Harrington-Smith v Western Australia (No 9) (2007) 238 ALR 1 at [1209]-[1217].


case_text: Section 84C(2) requires the Court to consider an application under s 84C(1) before any further proceedings take place in relation to the main application. But that does not require the Court to hear and determine the question as to whether the application has, in fact, been authorised as required by s 251B in all cases. It is only where the application is obviously without merit, that is, where there is no realistic prospect on the material before the Court of the authorisation being shown to have existed at the time it was purportedly granted, that an order will be made summarily dismissing or striking out the main application under s 84C. Sometimes an applicant faced with an application under s 84C may seek to amend the application to cure an identified deficiency (as discussed by Lander J in Williams v Grant at [57]). Where the application is not clearly without merit, so that it is not dismissed summarily or struck out, the Court may consider directing that an application under s 84C be heard and determined at the same time as the main application. That is a course of action which Wilcox J in Bodney v State of Western Australia [2003] FCA 890 at [45] suggested. The Court may also consider directing that the question of authorisation be heard and determined as a separate question, and be heard and determined prior to the hearing of the main application, under O 29 of the Federal Court Rules . That is a matter for each particular case and its particular circumstances. Whether such an order were appropriate would depend upon the extent to which there would be an overlap in the evidence likely to be called relating to authorisation and on the main application and a range of factors. The apparent attraction of expedition and economy may be misleading. Very often, the proposed evidence of authorisation is to be given by persons who also will give "connection" evidence and evidence of traditional laws and customs. There are often sound reasons in such circumstances why the separate trial of issues should not be ordered: Rocklea Spinning Mills Pty Ltd v Anti-Dumping Authority (1995) 56 FCR 406 ; Energy Australia v Australian Energy Ltd [2001] FCA 1049 at [8] per Stone J. There are also countervailing considerations of potential delay through splitting of issues and the separate processes which follow that course: Tallglen Pty Ltd v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130. So, not uncommonly, as occurred in both Risk and Harrington-Smith (referred to above) the issue of authorisation was heard and determined as part of the principal hearing of the main application.


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


case_text: In my view, on his own material, those two clans are a mere subset of the FRBG. It is therefore inappropriate that they should constitute the native title claim group: see e.g. Ward v Western Australia [1998] FCA 1478 ; (1998) 159 ALR 483 at 581; Risk v National Native Title Tribunal [2000] FCA 1589 at [60] ; Tilmouth v Northern Territory [2001] FCA 820 ; [2001] 109 FCR 240 at 241-242; Dieri People v South Australia [2003] FCA 187 ; (2003) 127 FCR 364 at [55] ; Landers v South Australia [2003] FCA 264 ; [2003] 128 FCR 495 at 504; and Harrington-Smith v Western Australia (No 9) (2007) 238 ALR 1 at [1209]-[1217].


case_title: Risk v National Native Title Tribunal [2000] FCA 1589


case_title: Tilmouth v Northern Territory [2001] FCA 820 ; [2001] 109 FCR 240


case_title: Energy Australia v Australian Energy [2001] FCA 1049


case_title: Tallglen Pty Ltd v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130


case_title: Attorney-General of Ontario v Mercer (1883) 8 App Cas 767

case_text: foundation of land tenure in Australian law was identified by Brennan J (with whom Mason CJ and McHugh J expressly agreed) in Mabo v Queensland [No 2] [1992] HCA 23 ; (1992) 175 CLR 1 at 47-48 as being derived from the grant of tenure of some kind by the Crown; see too at 81 per Deane and Gaudron JJ. Brennan J said that one incident of such tenure was the Crown's right to escheat: Mabo 175 CLR at 48; see too at 80 per Deane and Gaudron JJ. And in Wik Peoples v Queensland (1996) 187 CLR 1 at 90-91 Brennan CJ explained that the doctrines of tenure, of which escheat is an incident, and of estate, ensure that no land in which the Crown has granted an interest is ever without a legal owner. Escheat was abolished in England by s 45(1)(d) of Administration of Estates Act 1925 (Imp). What escheat involves at common law was elegantly explained by the Earl of Selborne LC giving the opinion of the Judicial Committee in Attorney-General of Ontario v Mercer (1883) (8 App Cas 767) at 772. First, the Lord Chancellor quoted the following from Coke on Littleton 13a: " 'Escheat' is a word of art, and signifieth properly when by accident the lands fall to the lord of whom they are holden, in which case we say the fee is escheated." His Lordship then continued: "The writ of escheat, when the tenant died without heirs, was in this form:- 'The King to the Sheriff, &c. Command A., &c., that he render to B. ten acres of land, with the appurtenances, in N., which C. held of him, and which ought to revert to him, the said B., as his escheat, for that the said C. died without heirs' (F. N. B., 144 F.). If there was a mesne lord, the escheat was to him; if not, to the King. From the use of the word 'revert', in the writ of escheat, is manifestly derived the language of some authorities which speak of escheat as a species of 'reversion'. There cannot, in the usual and proper sense of the term, be a reversion expectant upon an estate in fee simple. What is meant is that, when there is no longer any tenant, the land returns, by reason of tenure, to the lord by whom, or by whose predecessors in title, the tenure was created. Other writers speak of the lord as taking it by way of succession or inheritance, as if from the tenant, which is certainly not accurate. The tenant's estate (subject to any charges upon it which he may have created) has come to an end, and the lord is in by his own right." In addition, given that now such disclaimers and vesting orders occur under laws of the Commonwealth, the question may arise as to whether any escheat or remaining interest in the property after a disclaimer should be treated as falling into the Crown in right of the Commonwealth rather than the State: cf Attorney-General of Ontario 8 App Cas 767. And, in The King v Attorney-General of British Columbia [1924] AC 213 at 218-219 esp at 219 Lord Sumner observed that the principles upon which escheat and bona vacantia fall to the Crown are that where there is no private person entitled, the Crown takes: see too Land Law (5 th ed) where at pp 76-77 Professor Butt suggests that the only remnants in Australia of the doctrine of escheat are in the case of disclaimers by trustees in bankruptcy or liquidators. Because s 133(9) of the Bankruptcy Act preserves the possibility that the Court may vest disclaimed property in a person these doctrines may not operate in an unqualified way in the current legislative scheme. Once again, this is not the occasion to decide these questions, but they will require attention at some time. The title to the bankrupt's former land


case_outcome: cited

case_text: addition, ss 13H(1) and (2) and 13J of the RP Act are directed to creating an estate in fee simple held by or in the name of the State. That is not necessarily inconsistent with the Crown, in the case of a disclaimer, before any order is made under s 133(9) of the Bankruptcy Act or s 568F of the Corporations Act , holding the land in trust for statutory purposes, namely pending the determination of the Court as to the person in whom the property should vest. Trusts can exist for statutory purposes, as opposed to being confined to trusts for persons: Fouche v Superannuation Fund Board [1952] HCA 1 ; (1952) 88 CLR 609 at 640641 per Dixon, McTiernan and Fullagar JJ; Bathurst City Council v PWC Properties Pty Limited [1998] HCA 59 ; (1998) 195 CLR 566 at 592 [67] per Gaudron, McHugh, Gummow, Hayne and Callinan JJ.


case_text: re Stone; Read v Dubua (1936) 36 SR (NSW) 508 at 517 Jordan CJ, with whom Davidson J agreed, said that at common law if a cestuis que trust or mortgagor of land died without heirs and intestate, the trustee or mortgagee in whom the legal estate had vested henceforth held the land free from the trusts or from the equity of redemption and the doctrine of escheat did not apply. Escheat could not occur if the Crown or the mesne lord had a tenant: 10 Halsbury's Laws of England (2 nd ed) 616 [907]. In Beale v Symonds [1853] EngR 168 ; (1853) 16 Beav 406 at 413 [51 ER 835 at 838] Sir John Romilly MR held that no escheat occurred if a legal tenant was in possession of land (even if he or she were originally a trustee and the cestuis que trust had died without heirs and no further beneficiary had been identified in the trust deed or conveyance to take the beneficial interest). He followed the decision of Lord Henley (Lord Keeper) and Clarke MR, Lord Mansfield CJ dissenting, in Burgess v Wheate [1757] EngR 5 ; (1759) 1 Eden 177 [28 ER 652] finding that a mortgagee, who held the legal title in fee to land in consequence of a mortgage from a deceased who died intestate without heirs, first, did not lose the title by escheat but, secondly, could not deal with it as absolute owner free of the equity of redemption being available to discharge any subsisting (enforceable) debts of the deceased: Beale 16 Beav at 415-416; [51 ER at 839].


case_text: RP Act continued the system of Torrens title that had been introduced in New South Wales from 1 January 1863 by the Real Property Act (26 Vic No 9) (see s 2). That system applied to land under the operation of the RP Act . The RP Act expressly provided in s 2(4) that it was intended to override all pre-existing statutes, regulations and "practice whatsoever relating to freehold and other interests in land" under or brought under the provisions or operation of that Act. However, this still left lacunae where concepts inherent in estates or interests in or affecting land under the provisions of the RP Act were themselves not fully fleshed out or explained in that enactment: cf English Scottish and Australian Bank Ltd v Phillips [1937] HCA 6 ; (1937) 57 CLR 302 at 324 per Dixon, Evatt and McTiernan JJ. Under s 3(1) of the RP Act (if not inconsistent with the context and subject matter), a mortgage was defined as meaning "[a]ny charge on land ... created merely for securing the payment of a debt"; a mortgagee as "[t]he proprietor of a mortgage"; and a proprietor as "[a]ny person seised or possessed of any freehold or other estate or interest in land at law or in equity in possession in futurity or expectancy".


case_text: position identified by Jessel MR was accepted as correct in relation to disclaimers by liquidators and trustees in bankruptcy in a series of Australian cases decided prior to the enactment of ss 13H and 13J of the RP Act , and collected by Bowen CJ in Eq in Re Middle Harbour Investments Ltd and the Companies Act [1977] 2 NSWLR 652 at 662A-G, see too at 662G-664G; and Needham J in Re Tulloch Ltd 3 ACLR at 812-813 (followed by Madgwick J in In the Matter of Woo; National Australia Bank v Leroy [2003] FCA 862 at [10] ); see too the discussions by Napier CJ in Ex parte Cleland & Teesdale Smith [1960] SASR 199 at 209, Bryson J in Sandhurst Trustees Ltd v 72 Seventh Street Nominees Pty Ltd (in liq) (1998) 45 NSWLR 556 at 563B-566A (who did discuss ss 13H and 13J) and by EM Heenan J in Rams Mortgage Corporation Ltd v Skipworth (No 2) [2007] WASC 75 ; (2007) 239 ALR 799 at 800-802 [6] - [11] . In Re Condobolin Bila CDEP Ltd (deregistered); Commonwealth v New South Wales (2006) 59 ACSR 682 , Gyles J held that where land had been purchased by a company using grant moneys from a Commonwealth body that later was wound up and the liquidator disclaimed the land, it should be ordered pursuant to s 568F of the Corporations Act 2001 (Cth) to vest in the Commonwealth, the State having submitted to any order the Court might make.


case_text: s 56(1) the proprietor of an estate or interest in land under the provisions of the RP Act intended to be charged with or made security for the payment of a debt must execute a mortgage in the approved form. By force of s 57(1) the mortgage has effect as a security but does not operate as a transfer of the land mortgaged or charged (unlike the position at common law: see too Figgins Holdings Pty Ltd v SEAA Enterprises Pty Ltd [1999] HCA 20 ; (1999) 196 CLR 245 at 262 [22] per Gaudron, Gummow and Callinan JJ). Importantly, where a mortgagee wishes to exercise a power of sale based on default in payment under, or compliance with, the mortgage, the mortgagee must first serve on the mortgagor a notice under s 57(2)(b). If no notice is duly served under s 57(2)(b), then ss 57, 58 and 58A do not permit the mortgagee to exercise the power of sale. But, the RP Act is silent as to the remedy of a mortgagee that has not served a notice that authorises it to exercise a power of sale prior to a disclaimer by the registered proprietor's trustee in bankruptcy. The current problem The obligations to pay the amounts secured by the mortgagee were personal to the mortgagors, here, the bankrupts. Thus, the State, as the present registered proprietor of the land cannot be given a notice under s 57(2)(b) by the bank. This is because the State has no obligation under the mortgage even though its estate or interest is subject to the charge created by the bank's registration as mortgagee to secure repayment of what it was owed by the bankrupts. The State attended for a short time at the hearing but did not appear. However, it consented to the application made by the bank to become registered as proprietor of the land in order to sell it to a purchaser who will be entitled to be registered as proprietor of an estate in the land in fee simple. The bank intends to pay to the trustee in bankruptcy any surplus realised from the sale after the sums secured by the mortgagee have been repaid. Despite this cooperative conduct, the legal basis for achieving this simple goal requires some analysis because of the interaction between the laws of the State and the Commonwealth when property affected by the incidents of State law is disclaimed by its owner (as trustee in bankruptcy) under the Bankruptcy Act . Did the land escheat? However, as all judges since Jessel MR have recognised, the question of where the title goes after a disclaimer is as clear as mud. The device of treating the title as going to the Crown in right of the State (or Territory) in which the property is located may be convenient, so long as it respects the source whence it derives, namely (in a bankruptcy) s 133 of the Bankruptcy Act (or Div 7A of Pt 5.6 of the Corporations Act ) and the intention of the Parliament of the Commonwealth that this title in the Crown is not absolute or by escheat. This result can be accommodated by its limited interaction with Torrens title legislation, and the special position created with the (temporary) repository of the title, namely the Crown, pending the final decision of the Court as to the person in whom the title will vest: cf Figgins 196 CLR at 262-264 [22]-[27]. This is an incident of the conferral of jurisdiction on the Court to decide these questions. It is not appropriate to read provisions conferring jurisdiction on or granting powers to a court by making implications or imposing limitations which are not to be found in the express words of the legislation: Owners of the Ship 'Shin Kobe Maru' v Empire Shipping Company Inc [1994] HCA 54 ; (1994) 181 CLR 404 at 421 per Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ.


case_title: Fouche v Superannuation Fund Board [1952] HCA 1 ; (1952) 88 CLR 609


case_text: he dealt with a mortgagee's position after a disclaimer of land by a trustee in bankruptcy of the mortgagor under s 23 of the Bankruptcy Act 1869 (Imp), Sir George Jessel MR despaired that there was no one entitled to take the estate except the Crown, and continued in In re Mercer and Moore (1880) 14 Ch D 287 at 295-296: "This, however, is no way of getting out of the difficulty indeed you get into a worse difficulty here, for how are you to get the estate out of the Crown again? There are no means that I know of except by actual grant or by the will of the Crown to get back a legal estate, which would be a very awkward result and very prejudicial to many titles in this part of the country, especially where these titles are very common. If that is not so, I do not know where the estate is." After noting up these difficulties with the operation of the doctrine his Lordship commented: As I have said before, I am not sure here that the estate is in the Crown, but if it is not in the Crown I do not know where it is. At all events it is not in the trustee in bankruptcy, and has not been conveyed, therefore, to the present vendors. Therefore they cannot convey to the present purchasers. I have looked into the Trustee Act , and I do not see any mode of getting in the legal estate. The Trustee Act does not provide for want of an heir. The English legislation provided that after a disclaimer, any person interested in any disclaimed property could apply to the court and it could make orders for the possession of the property (see 14 Ch D at 290).


case_title: In the Matter of Woo; National Australia Bank v Leroy [2003] FCA 862


case_text: foundation of land tenure in Australian law was identified by Brennan J (with whom Mason CJ and McHugh J expressly agreed) in Mabo v Queensland [No 2] [1992] HCA 23 ; (1992) 175 CLR 1 at 47-48 as being derived from the grant of tenure of some kind by the Crown; see too at 81 per Deane and Gaudron JJ. Brennan J said that one incident of such tenure was the Crown's right to escheat: Mabo 175 CLR at 48; see too at 80 per Deane and Gaudron JJ. And in Wik Peoples v Queensland (1996) 187 CLR 1 at 90-91 Brennan CJ explained that the doctrines of tenure, of which escheat is an incident, and of estate, ensure that no land in which the Crown has granted an interest is ever without a legal owner. Escheat was abolished in England by s 45(1)(d) of Administration of Estates Act 1925 (Imp). What escheat involves at common law was elegantly explained by the Earl of Selborne LC giving the opinion of the Judicial Committee in Attorney-General of Ontario v Mercer (1883) (8 App Cas 767) at 772. First, the Lord Chancellor quoted the following from Coke on Littleton 13a: " 'Escheat' is a word of art, and signifieth properly when by accident the lands fall to the lord of whom they are holden, in which case we say the fee is escheated." His Lordship then continued: "The writ of escheat, when the tenant died without heirs, was in this form:- 'The King to the Sheriff, &c. Command A., &c., that he render to B. ten acres of land, with the appurtenances, in N., which C. held of him, and which ought to revert to him, the said B., as his escheat, for that the said C. died without heirs' (F. N. B., 144 F.). If there was a mesne lord, the escheat was to him; if not, to the King. From the use of the word 'revert', in the writ of escheat, is manifestly derived the language of some authorities which speak of escheat as a species of 'reversion'. There cannot, in the usual and proper sense of the term, be a reversion expectant upon an estate in fee simple. What is meant is that, when there is no longer any tenant, the land returns, by reason of tenure, to the lord by whom, or by whose predecessors in title, the tenure was created. Other writers speak of the lord as taking it by way of succession or inheritance, as if from the tenant, which is certainly not accurate. The tenant's estate (subject to any charges upon it which he may have created) has come to an end, and the lord is in by his own right."


case_text: as all judges since Jessel MR have recognised, the question of where the title goes after a disclaimer is as clear as mud. The device of treating the title as going to the Crown in right of the State (or Territory) in which the property is located may be convenient, so long as it respects the source whence it derives, namely (in a bankruptcy) s 133 of the Bankruptcy Act (or Div 7A of Pt 5.6 of the Corporations Act ) and the intention of the Parliament of the Commonwealth that this title in the Crown is not absolute or by escheat. This result can be accommodated by its limited interaction with Torrens title legislation, and the special position created with the (temporary) repository of the title, namely the Crown, pending the final decision of the Court as to the person in whom the title will vest: cf Figgins 196 CLR at 262-264 [22]-[27]. This is an incident of the conferral of jurisdiction on the Court to decide these questions. It is not appropriate to read provisions conferring jurisdiction on or granting powers to a court by making implications or imposing limitations which are not to be found in the express words of the legislation: Owners of the Ship 'Shin Kobe Maru' v Empire Shipping Company Inc [1994] HCA 54 ; (1994) 181 CLR 404 at 421 per Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ.


case_title: Rams Mortgage Corporation Ltd v Skipworth (No 2) [2007] WASC 75 ; (2007) 239 ALR 799


case_title: Re Condobolin Bila CDEP Ltd (deregistered); Commonwealth v New South Wales (2006) 59 ACSR 682


case_title: Re Middle Harbour Investments Ltd and the Companies Act [1977] 2 NSWLR 652


case_title: Re Stone; Read v Dubua (1936) 36 SR (NSW) 508


case_text: Registrar-General (to whom execution of the RP Act is entrusted by s 4) is required to make such recordings in the Register (kept for the purposes of the RP Act as the record of all dealings registered under it (s 31B)) as the Registrar-General considers appropriate. Once aware that any land comprised in a folio of the Register has become Crown land within the meaning of the Crown Lands Act 1989 (NSW) (s 13H(1)). The Registrar-General considered that the land here was Crown land, being land vested in the Crown (in right of the State) within the meaning of the definition of "Crown land" in s 3(1) of the Crown Lands Act . This was based on the decision of Needham J in Re Tulloch Ltd (in liq) and the Companies Act (1978) 8 ACLR 808 that, on disclaimer, the land had escheated to the Crown. Importantly, s 13H(2) provides that "...the Registrar-General may record 'The State of New South Wales' as the registered proprietor of land referred to in [s 13H(1)] if it is not already so recorded". And, s 13J provides that where "...'The State of New South Wales' is recorded as the registered proprietor of land in accordance with this Act, the estate to which that recording relates is an estate in fee simple". The present provisions of Pt 3 of the RP Act and, in particular, ss 13H and 13J were first enacted in 1980 (see: Real Property (Crown Land Titles) Amendment Act No 193 of 1980 (NSW); Sch 1(3)). Once a person is recorded in a folio of the Register as the registered proprietor for the time being of an estate or interest in land in that folio, the person holds that estate or interest subject to such other estates and interests (including mortgages) and other entries as are recorded in that folio absolutely free from all other estates or interests, other than in the case of fraud or certain closely defined exceptions as provided in s 42. The position identified by Jessel MR was accepted as correct in relation to disclaimers by liquidators and trustees in bankruptcy in a series of Australian cases decided prior to the enactment of ss 13H and 13J of the RP Act , and collected by Bowen CJ in Eq in Re Middle Harbour Investments Ltd and the Companies Act [1977] 2 NSWLR 652 at 662A-G, see too at 662G-664G; and Needham J in Re Tulloch Ltd 3 ACLR at 812-813 (followed by Madgwick J in In the Matter of Woo; National Australia Bank v Leroy [2003] FCA 862 at [10] ); see too the discussions by Napier CJ in Ex parte Cleland & Teesdale Smith [1960] SASR 199 at 209, Bryson J in Sandhurst Trustees Ltd v 72 Seventh Street Nominees Pty Ltd (in liq) (1998) 45 NSWLR 556 at 563B-566A (who did discuss ss 13H and 13J) and by EM Heenan J in Rams Mortgage Corporation Ltd v Skipworth (No 2) [2007] WASC 75 ; (2007) 239 ALR 799 at 800-802 [6] - [11] . In Re Condobolin Bila CDEP Ltd (deregistered); Commonwealth v New South Wales (2006) 59 ACSR 682 , Gyles J held that where land had been purchased by a company using grant moneys from a Commonwealth body that later was wound up and the liquidator disclaimed the land, it should be ordered pursuant to s 568F of the Corporations Act 2001 (Cth) to vest in the Commonwealth, the State having submitted to any order the Court might make. Here, by force of s 133(2) the effect of the trustee's disclaimer on 29 October 2008 appears to have determined any ongoing charge on the land for subsequent liabilities that would otherwise have continued to accrue, such as future (unpaid) interest on the debt secured by the mortgage. I agree with Needham J's conclusion that a mortgagee of Torrens title land is entitled to be granted a vesting order: Re Tulloch Ltd 8 ACLR at 814. I am of opinion that the land should be vested under s 133(9) in the bank for the purpose for which it originally was mortgaged, namely to secure payment to the bank of all principal, interest and other moneys due to it notwithstanding the effect of the disclaimer. If, after a sale, there is a shortfall the bank will be able to prove for it as an unsecured creditor in the bankrupts' estate. I propose to order that the legal title of the land vest in the bank so that it may sell the estate in fee simple to a purchaser subject to conditions. I am of opinion that on a sale the bank be entitled to retain, from the proceeds of sale, all moneys to which it would have been entitled assuming that there had been no disclaimer had it sold exercising its power of sale, to the intent that the land will answer as secure for all interest, fees and other moneys that would have been secured by the mortgage. The bank should be entitled to deduct those sums from the proceeds of sale as if there had not been a disclaimer and the mortgage had continued to secure the debts and liabilities of the bankrupts or their estates. The bank should apply the sale proceeds in the manner provided in s 58(3) of the RP Act accounting to the trustee in bankruptcy for any surplus namely: "The purchase money to arise from the sale of any such land, estate, or interest, shall be applied, first, in payment of the expenses occasioned by such sale; secondly, in payment of the moneys which may then be due or owing to the mortgagee, chargee or covenant chargee; thirdly, in payment of subsequent mortgages, charges or covenant charges (if any) in the order of their priority; and the surplus (if any) shall be paid to the mortgagor, charger or covenant charger, as the case may be." I will also require the bank to provide accounts of how it has dealt with the sale proceeds to the State and the Registrar. I will direct the bank to bring in short minutes to give effect to these reasons. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate: Dated: 21 September 2009 Solicitor for the Applicant: DibbsBarker Counsel for the Applicant: Mr J White No appearance for the Respondent: Date of Hearing: 20, 22 May 2009 Date of Judgment: 21 September 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/1066.html


case_text: addition, given that now such disclaimers and vesting orders occur under laws of the Commonwealth, the question may arise as to whether any escheat or remaining interest in the property after a disclaimer should be treated as falling into the Crown in right of the Commonwealth rather than the State: cf Attorney-General of Ontario 8 App Cas 767. And, in The King v Attorney-General of British Columbia [1924] AC 213 at 218-219 esp at 219 Lord Sumner observed that the principles upon which escheat and bona vacantia fall to the Crown are that where there is no private person entitled, the Crown takes: see too Land Law (5 th ed) where at pp 76-77 Professor Butt suggests that the only remnants in Australia of the doctrine of escheat are in the case of disclaimers by trustees in bankruptcy or liquidators. Because s 133(9) of the Bankruptcy Act preserves the possibility that the Court may vest disclaimed property in a person these doctrines may not operate in an unqualified way in the current legislative scheme. Once again, this is not the occasion to decide these questions, but they will require attention at some time. The title to the bankrupt's former land


case_title: Wik Peoples v Queensland (1996) 187 CLR 1


case_text: Mr Rosenlund considered that it would have been difficult or impossible for Toea to comply with the clauses relating to the expulsion of stallholders who infringed trademarks. He also considered that employees did not have the experience or expertise necessary in order to recognize counterfeit products or to confirm that a product was counterfeit even if a representative of the applicant so asserted. Mr Rosenlund was also concerned that the deed might oblige him to expel a tenant who had been a good tenant for many years and whose livelihood was at stake. The decision of White J in Sun Valley Dried Fruit Pty Ltd v Toea & Rosenlund (BS 9418/2004) caused at least part of Mr Rosenlund's concern. In that case, Sun Valley had sought to restrain Toea from terminating a licence to occupy and applied for an interlocutory injunction pending trial. The decision concerned only the application for interlocutory relief and is not authority for any particular view of the nature of the relationship between Toea and stallholders. Nonetheless it demonstrates the difficulties inherent in terminating such an arrangement. One can well understand that Mr Rosenlund might feel that it would be unwise to commit Toea to immediate expulsion of a stallholder if he was not sure that it would be able to honour such a commitment. It might also be thought somewhat harsh that Toea should be obliged to act upon the applicant's opinion as to whether there had been an infringement, rather than upon its own view of the matter, and that it should retain no discretion to consider other circumstances in deciding how to deal with a particular infringement. 113 On Saturday 26 February and Sunday 27 February 2005, Mr Rosenlund and two members of his staff walked around the Market in order to see whether any Louis Vuitton products were being sold. They found none. On 3 March 2005 Mr Rosenlund wrote to the solicitors, saying that he would not sign the deed of co-operation and outlining the steps which he had taken on the previous weekend to detect any further infringements. He indicated that he would continue to take these steps. 114 On 5 May 2005 the solicitors for the applicant again wrote to Mr Rosenlund. They set out the previous history of dealings between the parties and asserted that Ms Gallop and Mr Alcock had again, on 11 February 2004, 17 February 2004 and 24 April 2005, been found selling infringing goods. The solicitors indicated that they considered that Mr Rosenlund was not co-operating with the applicant and continued: 'Your company's conduct in allowing stall-holders at Carrara Market to deal in Infringing Goods is likely to constitute an involvement by your company, and its officers, as joint tortfeasor with those stall-holders of infringement of the Louis Vuitton trademark. Our client has previously indicated in our letter dated 15 January 2004, and in a Deed of Co-operation that was sent to you on 10 February 2005, that it is more than willing to work with your company to prevent the unlawful sale of Infringing Goods that is being carried on at Carrara Market. However, in your letter dated 3 March 2005, your company declined to sign our Deed of Co-operation. We understand from your letter dated 3 March 2005, that so-called " permanent stalls" may have been bought for $50,000, while the Carrara website states that casual stall-holders pay $38.50 to hire for a stall for one day. Clearly, your company is obtaining significant financial benefits from stall-holders at Carrara Market. In our client's view, given your company's control over the Carrara Market, it appears that your company is sanctioning and also benefiting financially from stall-holders that sell Infringing Goods. Our client considers that the only measures that will be adequate to prevent the ongoing infringements at Carrara Market are to take appropriate action against the stall-holders identified in Schedule C to G. Accordingly, our client demands that your company: (a) expel any casual stall-holders identified in Schedule C to G from the Carrara Market by 4 pm on Sunday 8 May 2005 and prohibit them from hiring casual stalls at Carrara Market in the future; (b) take whatever steps that you are legally able to in order to stop "permanent stall-holders" identified in Schedule C to G from selling Infringing Goods at the Carrara Market, which may mean giving reasonable notice to them that you will evict them within one month for breach of the terms on which they hold a permanent stall; and (c) inform us by 4.00 pm on Friday 12 May of compliance with the demands contained in this letter. If these demands are not fully satisfied by the dates referred to, we expect that our client will commence Federal Court proceedings against your company and any relevant officers of your company (including but not limited to directors and employees personally involved) without further notice. In any such Federal Court proceedings our client will seek both interlocutory and permanent injunctions against your company, damages or an account of profits, and its costs.'


case_outcome: considered

case_text: In the course of oral submissions counsel put the case in this way (at TS 200 ll 25-30): 'Our starting point is very simple, your Honour. When one goes to The Koursk ([1924] P 140) which has been adopted as the foundation of the principle of joint tortfeasorship by the High Court in Thompson's case, [ Thompson v Australian Capital Television Pty Ltd [1996] HCA 38 ; (1996) 186 CLR 574 ] and we've set it out in paragraph 18 of our outline, Scrutton LJ spoke of two persons who agree on a common action in the course of, and to further which one of them commits a tort. And that's the foundation of what are joint tortfeasors. In this case, in our respectful submission, the evidence is clear that Toea, as landlord or land owner, and the stallholders, who are two or more persons, agree on a common action, the common action being the promotion of their joint businesses at the market.' 148 I have previously referred to the applicant's reliance on the decision of the Court of Appeal in The "Koursk" (supra). However I suspect that it has misconceived that decision. The case arose out of a collision at sea involving the "Clan Chisholm", The "Koursk" and the "Itria" , leading to the loss of the "Itria" . The owners of the "Itria" sued the owners of the other vessels, alleging separate and independent acts of negligence against each of them. The question was whether judgment recovered against the owners of the "Clan Chisholm" barred a further action by the owners of the "Itria" against the owners of The "Koursk" . This depended upon whether the two ship owners (of the "Clan Chisholm" and The "Koursk" ) were joint or several tortfeasors. Bankes LJ adopted the following proposition from Clerk and Lindsell on Torts , 7th ed at p 59: 'Persons are said to be joint tortfeasors when their respective shares in the commission of the tort are done in furtherance of a common design.' 149 Scrutton LJ said at 155: 'The substantial question in the present case is: What is meant by "joint tortfeasors"? and one way of answering it is: "Is the cause of action against them the same?" Certain classes of persons seem clearly to be "joint tortfeasors": The agent who commits a tort within the scope of his employment for his principal and the principal; the servant who commits a tort in the course of his employment, and his master; two persons who agree on common action, in the course of, and to further which, one of them commits a tort. These seem clearly joint tortfeasor; there is one tort committed by one of them on behalf of, or in concert with another.' 150 The applicant fastens on the proposition concerning two persons who agree on common action in the course of which one commits a tort, submitting that the present case fits that description. However that observation by Scrutton LJ must be read in the context of his Lordship's later remarks at 156 where he referred with approval to the statement in Clerk and Lindsall (to which Bankes LJ had referred), that: ' "Persons are said to be joint tortfeasors when their respective shares in the commission of the tort are done in furtherance of a common design" ... "But mere similarity of design on the part of independent actors, causing independent damage, is not enough; there must be concerted action to a common end." Still more so when there is not even similarity of design, but independent negligence accidentally resulting in one damage.' 151 At 159 Sargant LJ adopted the same passage. 152 The applicant points to the reference by Scrutton LJ to 'common action' and asserts that in this case, the common action agreed upon between the respondents and each stallholder was 'the function of their joint businesses at the Market' . No doubt the respondents desired that the Market be successful and took steps to achieve that aim. No doubt, too, each stallholder desired that his or her stall be successful and took steps to achieve that aim. However that does not lead to the conclusion that the respondents and each stallholder had agreed on common action. Aims are not actions. The term 'common action' must surely mean 'steps to be taken' . At p 155 of The "Koursk" , Scrutton LJ was identifying common relationships in which joint torts generally occur, rather than the underlying principle which defines the relationship of joint tortfeasors. At 156, his Lordship addressed that principle, holding that each party must share in the commission of the tort in furtherance of a common design, not merely in furtherance of similar designs. 157 At 580-581, the majority (Brennan CJ, Dawson and Toohey JJ) said: 'The difference between joint tortfeasors and several tortfeasors is that the former are responsible for the same tort whereas the latter are responsible only for the same damage ... . As was said in The "Koursk" ..., for there to be joint tortfeasors "there must be a concurrence in the act or acts causing damage, not merely a co-incidence of separate acts which by their conjoined effect cause damage". Principal and agent may be joint tortfeasors where the agent commits a tort on behalf of the principal, as master and servant may be where the servant commits a tort in the course of employment. Persons who breach a joint duty may also be joint tortfeasors. Otherwise, to constitute joint tortfeasors two or more persons must act in concert in committing the tort.' 158 At 600, Gummow J (Gaudron J concurring) also identified the decision in The "Koursk" as defining joint liability for the purposes of Australian law. At 601 602, his Honour distinguished the decision in CBS Songs on its fact but did not doubt its correctness. 160 His Honour referred to the The "Koursk" and another case, and then observed that Lord Justice Mustill, in Unilever PLC v Gillette (UK) Ltd [1989] RPC 583: '... stated the common law rule that two persons were joint tortfeasors ... where the two were concerned in a joint act done in pursuance of a common purpose. After reviewing the patent cases and the speech of Lord Templeman in CBS Songs Ltd v Armstrad ... Lord Justice Mustill said at p 609 that the relevant question is whether: (a) there was a common design between B and G to do acts which, if the patent is upheld, amounted to infringements, and (b) B had acted in furtherance of that design. I use the word "common design" because they are readily to hand, but there are other expressions in the cases, such as "concerted action" or "agreed or common action" which will serve just as well.' 162 Hobhouse LJ subsequently referred to The "Koursk" , CBS Songs and Unilever , concluding (at 46) that these cases established that: 'It is only conduct which comes into the first or the third of the categories I have set out above which constitute the commission of a tort. The criminal law for obvious policy reasons goes further than the civil law. Acts which knowingly facilitate the commission of a crime amount to the crime of aiding and abetting but they do not amount to a tort or make the aider liable as a joint tortfeasor.' 164 In Kerly's Law of Trademarks and Trade Names 14 th ed at par 19-044, the learned authors observe, in connection with trademarks, that: 'For the general principles applicable in relation to joint liability based on procurement or common design see CBS v Armstrad and Credit Lyonnais v Export Credit Guarantee Department '. Those decisions are based on that in The "Koursk" . The High Court's view of that case appears from the decision in Thompson v Australian Capital Television and is the relevant test for present purposes. 168 There will be cases in which the relationship between the person who commits a tort and another person may be such as to amount to both authorization (in the case of copyright) and also to satisfy the test for joint tortfeasors laid down in The "Koursk" and Thompson v Australian Capital Television. However to prove authorization is not necessarily to prove infringement. As the present case demonstrates, control does not, itself, imply a common purpose. However the extent of control may be relevant evidence in determining whether such a common purpose existed at the relevant time.


case_text: I turn to the decision of the House of Lords in CBS Songs Limited v Amstrad Consumer Electronics PLC [1988] 1 AC 1013. The facts appear sufficiently from the head note as follows: 'The plaintiffs, suing on behalf of themselves and other copyright owners in the music trade, claimed that the defendants, by manufacturing, advertising and offering for sale hi-fi systems with facilities for, inter alia, recording at high speed from pre-recorded cassettes onto blank tapes, had authorised and incited members of the public to infringe their copyrights, were joint infringers with such members of the public and were in breach of a duty of care owed to the copyright owners not to supply the machines without taking such precautions as would reasonably ensure that the copyrights would not be infringed by their use. They sought an injunction to retrain the defendants from parting with possession of the machines, or any like machines, without taking such precautions.' 158 At 600, Gummow J (Gaudron J concurring) also identified the decision in The "Koursk" as defining joint liability for the purposes of Australian law. At 601 602, his Honour distinguished the decision in CBS Songs on its fact but did not doubt its correctness. 162 Hobhouse LJ subsequently referred to The "Koursk" , CBS Songs and Unilever , concluding (at 46) that these cases established that: 'It is only conduct which comes into the first or the third of the categories I have set out above which constitute the commission of a tort. The criminal law for obvious policy reasons goes further than the civil law. Acts which knowingly facilitate the commission of a crime amount to the crime of aiding and abetting but they do not amount to a tort or make the aider liable as a joint tortfeasor.' 166 See also CBS Songs (supra) at 1053-1055 and Australian Tape Manufacturers Association Ltd v The Commonwealth (1993) 67 ALJR 315 at 317.


case_outcome: applied

case_text: In the course of oral submissions counsel put the case in this way (at TS 200 ll 25-30): 'Our starting point is very simple, your Honour. When one goes to The Koursk ([1924] P 140) which has been adopted as the foundation of the principle of joint tortfeasorship by the High Court in Thompson's case, [ Thompson v Australian Capital Television Pty Ltd [1996] HCA 38 ; (1996) 186 CLR 574 ] and we've set it out in paragraph 18 of our outline, Scrutton LJ spoke of two persons who agree on a common action in the course of, and to further which one of them commits a tort. And that's the foundation of what are joint tortfeasors. In this case, in our respectful submission, the evidence is clear that Toea, as landlord or land owner, and the stallholders, who are two or more persons, agree on a common action, the common action being the promotion of their joint businesses at the market.' 156 In Thompson v Australian Capital Television Pty Ltd (supra) the facts, according to the head note, were as follows: 'A television station broadcast live to viewers in the Australian Capital Territory a current affairs programme produced by another station. The licence to broadcast was granted by PBL which was a related entity of the producer. The content of the broadcast was defamatory of T. T settled with the producer and gave it a release. T sued the broadcaster in the Supreme Court of the Territory. The broadcaster joined the producer and PBL as third parties, seeking contribution and also damages for breach of an implied condition of the licence agreement that they would exercise reasonable care to ensure that the relayed programme would not include defamatory material. Although the broadcaster took no part in the production of the programme, it acted in its own right and had the ability to control and supervise the material it televised. The broadcaster voluntarily decided to broadcast live. It sought to defend the proceedings on the grounds that it and the producer were joint tortfeasors and that the release granted to the producer by T also released it.' 164 In Kerly's Law of Trademarks and Trade Names 14 th ed at par 19-044, the learned authors observe, in connection with trademarks, that: 'For the general principles applicable in relation to joint liability based on procurement or common design see CBS v Armstrad and Credit Lyonnais v Export Credit Guarantee Department '. Those decisions are based on that in The "Koursk" . The High Court's view of that case appears from the decision in Thompson v Australian Capital Television and is the relevant test for present purposes. 168 There will be cases in which the relationship between the person who commits a tort and another person may be such as to amount to both authorization (in the case of copyright) and also to satisfy the test for joint tortfeasors laid down in The "Koursk" and Thompson v Australian Capital Television. However to prove authorization is not necessarily to prove infringement. As the present case demonstrates, control does not, itself, imply a common purpose. However the extent of control may be relevant evidence in determining whether such a common purpose existed at the relevant time. 170 In the course of argument the applicant referred to three American cases concerning 'secondary' liability for trademark infringements. Given the clear statement of principle in connection with tortious liability in Thompson v Australian Capital Television, I see no point in discussing those cases in this judgment. 171 I proceed upon the basis that, in order to hold the respondents liable for the stallholders' infringements, '... there must be a concurrence in the act or acts causing damage, not merely a coincidence of separate acts which by their conjoined effect cause damage', and that in order to satisfy that test in the present case, it is necessary to show that the respondents acted in concert with each stallholder in 'committing the tort' . 172 In my view it is simply impossible to reach that conclusion. I accept Mr Rosenlund's evidence that he wished to deter stallholders from infringing trademarks and took steps to do so. The primary infringing stallholders all understood that this was his position and therefore that of Toea. The applicant's case hangs upon the assertion that he did not do enough, or could have done more, to deter infringement. It is said that from this, I should infer that he was really encouraging the stallholders in their illegal activities. In other words, it is submitted that although there was no duty on the respondents to take steps to prevent infringement, the failure to do so evidenced an intention to encourage infringement. That approach fails to take account of the fact that there may have been other reasons for not taking more draconian measures to prevent infringement. In any event, I am unpersuaded that either of the respondents acted in common with any of the stallholders in the actions which constituted infringement of the applicant's copyrights. I am also satisfied that such infringements were not committed in the execution of any common purpose shared with the respondents. As I have said, the respondents' purpose was to conduct an efficient and profitable Market. The purpose of each stallholder was the successful conduct of his or her stall. There was no common purpose. 173 It follows that the application must be dismissed. I will hear submissions as to costs and any requests for further findings of fact. I certify that the preceding one hundred and seventy three (173) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett. Associate: Dated: 6 November 2006 Counsel for the Applicant: Mr D Shavin QC Mr D Eliades Solicitor for the Applicant: Corrs Chambers Westgarth Counsel for the Respondent: Mr A Crowe SC Mr M Rivette Solicitor for the Respondent: McLaughlins Solicitors Dates of Hearing: 12, 13, 14 December 2005 Date of Judgment: 7 November 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1443.html


case_text: Finally, I should refer to the decision of the Court of Appeal in Credit Lyonnais Bank Nederland NV v Export Credit Guarantee Department [1998] 1 Lloyd's Rep 19. It is not necessary to set out the rather complex facts of the case, but I will include two extended extracts from the reasons for judgment of Stuart-Smith and Hobhouse LLJJ. Stuart-Smith LJ said at 35: 'Be that as it may, it seems to me to be well established that a person who acts with another to commit a tort in furtherance of a common design will be liable as a joint tortfeasor. It is not enough that he merely facilitates the commission of the tort unless his assistance is given in pursuance and furtherance of the common design.' 164 In Kerly's Law of Trademarks and Trade Names 14 th ed at par 19-044, the learned authors observe, in connection with trademarks, that: 'For the general principles applicable in relation to joint liability based on procurement or common design see CBS v Armstrad and Credit Lyonnais v Export Credit Guarantee Department '. Those decisions are based on that in The "Koursk" . The High Court's view of that case appears from the decision in Thompson v Australian Capital Television and is the relevant test for present purposes.


case_text: His Honour referred to the The "Koursk" and another case, and then observed that Lord Justice Mustill, in Unilever PLC v Gillette (UK) Ltd [1989] RPC 583: '... stated the common law rule that two persons were joint tortfeasors ... where the two were concerned in a joint act done in pursuance of a common purpose. After reviewing the patent cases and the speech of Lord Templeman in CBS Songs Ltd v Armstrad ... Lord Justice Mustill said at p 609 that the relevant question is whether: (a) there was a common design between B and G to do acts which, if the patent is upheld, amounted to infringements, and (b) B had acted in furtherance of that design. I use the word "common design" because they are readily to hand, but there are other expressions in the cases, such as "concerted action" or "agreed or common action" which will serve just as well.' 162 Hobhouse LJ subsequently referred to The "Koursk" , CBS Songs and Unilever , concluding (at 46) that these cases established that: 'It is only conduct which comes into the first or the third of the categories I have set out above which constitute the commission of a tort. The criminal law for obvious policy reasons goes further than the civil law. Acts which knowingly facilitate the commission of a crime amount to the crime of aiding and abetting but they do not amount to a tort or make the aider liable as a joint tortfeasor.'


case_text: The applicant puts some emphasis upon Toea's legal capacity to control use of the Market premises. It implicitly asserts that the respondents failed to prevent infringement notwithstanding that power, and that such failure is a basis for inferring their 'concurrence' in the infringement. The question of control has arisen frequently in connection with breach of copyright. Subsection 36(1) of the Copyright Act 1968 (Cth) (the " Copyright Act ") provides that a person infringes a copyright if he or she 'not being the owner of the copyright, and without the licence of the owner of the copyright, does in Australia, or authorises the doing in Australia, any act comprised in the copyright.' In University of New South Wales v Moorhouse [1975] HCA 26 ; (1974-1975) 133 CLR 1, the High Court considered the case of a university library which had provided photocopying machines on its premises, one of which had been used to make an unauthorized copy of a literary work. The question was whether the university had infringed by authorization. At 20-21, Jacobs J, with whom McTiernan J agreed, said concerning the word 'authorises' : 'It is established that word is not limited to the authorising of an agent by a principal. Where there is such an authority the act of the agent is the act of the principal and thus the principal himself may be said to do the act comprised in the copyright. But authorisation is wider than authority. It has, in relation to a similar use in previous copyright legislation, been given the meaning, taken from the Oxford Dictionary, of "sanction, approve, countenance". ...I have no doubt that the word is used in the same sense in section 36(1). It is a wide meaning which in cases of permission or invitation is apt to apply both where an express permission or invitation is extended to do the act comprising the copyright and where such a permission or invitation may be implied. Where a general permission or invitation may be implied it is clearly unnecessary that the authorising party have knowledge that a particular act comprised in the copyright will be done. The acts and omissions of the alleged authorising party must be looked at in the circumstances in which the act comprised in the copyright is done. The circumstances will include the likelihood that such an act will be done. "... (t)he Court may infer an authorisation or permission from acts which fall short of being direct and positive; ... indifference, exhibited by acts of commission or omission, may reach a degree from which authorisation or permission may be inferred. It is a question of fact in each case what is the true inference to be drawn from the conduct of the person who is said to have authorised ..." '


case_text: See also CBS Songs (supra) at 1053-1055 and Australian Tape Manufacturers Association Ltd v The Commonwealth (1993) 67 ALJR 315 at 317.


case_text: as both Ms Alison O'Brien and Mr Jorgensen submitted, the right of an affected person to apply to this Court for relief under s 46PO is limited to applications in respect of complaints of "unlawful discrimination" made to the Commission under Pt IIB. The effect of s 46PO(3) is to preclude a complainant from agitating in this Court a complaint in relation to other types of discrimination: Charles v Fuji Xerox Australia Pty Ltd [2000] FCA 1531 ; (2000) 105 FCR 573 at [38] - [43] per Katz J. Ms Bahonko has submitted that, pursuant to s 46PR the Court "is not bound by technicalities or legal forms". Accordingly, it should allow her to pursue her complaints regarding religious and political discrimination within this proceeding notwithstanding the fact that her application was brought pursuant to s 46PO. She submitted that this was necessary in order to avoid possible fragmentation of proceedings. The question whether this Court has jurisdiction to hear a matter, however, is not a mere technicality or legal form. This Court is either vested with jurisdiction to hear the complaints regarding religious and political discrimination, or it is not. It is clear for the reasons initially outlined by Mr Jorgensen, and later taken up by Ms Alison O'Brien, as well as from the provisions of the HREOC Act itself, that this Court has no such jurisdiction.


case_title: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 pp 348-9

case_text: principles to be considered when deciding whether to extend time for the filing of an application were clearly enunciated by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-9. That case concerned s 11(1)(c) of the Administrative Decisions (Judicial Review) 1977 (Cth) which is similar, in terms, to s 46PO(2). Wilcox J noted that although the section did not place any onus of proof upon an applicant for an extension of time, an application had to be made. Special circumstances did not need to be shown but the Court would not grant the application unless positively satisfied that it was proper to do so. The "proscribed period" (28 days in that case) was not to be ignored. Indeed, it was the prima facie rule that proceedings commenced outside the proscribed period would not be entertained. An applicant for an extension had to show an "acceptable explanation of the delay" and that it was "fair and equitable" in the circumstances to extend time. His Honour set out other relevant factors, which ought guide the exercise of the Court's discretion. These included the question of prejudice to the respondent. However, the mere absence of prejudice was not enough to justify the grant of an extension. Importantly, he added that the merits of the substantial application were properly to be taken into account in considering whether an extension of time should be granted.


case_outcome: followed

case_title: Ingram-Nader v Brinks Australia Pty Ltd [2006] FCA 624 at [12]

case_text: Ingram-Nader v Brinks Australia Pty Ltd [2006] FCA 624 , Cowdroy J held (at [12]) that those principles were relevant to an application under s 46PO. I am of the same view. In support of her application to extend time, Ms Bahonko tendered a number of medical certificates. She submitted that those certificates explained that she had been ill during the delay period. Although the medical certificates were not exhibited or attached to any affidavit, the respondents did not object to Ms Bahonko relying on them. Accordingly, the certificates were accepted into evidence.


case_text: Mr Buckley helpfully referred me to a recent decision of French J, Meadow Springs v Balanced Securities (2007) 25 ACLC 1 ,433. In that case French J at [48] pointed out that a direction given or a question determined under s 511 would protect the liquidator who acts in accordance with the direction or determination. His Honour thought it may be an open question whether it establishes a res judicata between the liquidator and any parties affected by it who are named as defendants in the application, but neither direction nor determination gives rise to a res judicata as between parties who may have competing interests affected by it.


case_title: Boles v Official Trustee in Bankruptcy [2001] FCA 639 , 183 ALR 239

case_text: In the present proceeding Ms Samootin did not establish any reason why the sequestration order " ought not to have been made ". And the task to be undertaken pursuant to that provision is not a task of the Court reviewing afresh the facts as at the date of the making of the sequestration order, but rather the very much more confined task of considering whether the person making the order was " bound " not to have made it: cf Re Frank; Ex parte Piliszky (1987) 16 FCR 396 at 403. Fisher J there concluded: In the light of the various contrasting avenues open to a bankrupt to approach the court to have the sequestration order set aside, it is in my opinion necessary to attach significance to the "careful provisions" of s 154 , and in particular the words "ought not to have been made". In my opinion it can be said that a judge "ought" not to have made an order only if he was "bound" not to make the order. In circumstances where it was open to a judge to make an order in the exercise of his discretion, it can only be said he "ought not to have made the order" if none of the circumstances could justify the making of an order. Alternatively it can be established that an order "ought" not to have been made because subsequent evidence discloses that all of the true facts were not before the court when the order was made: Re Cook (1946) 13 ABC 245 at 249. F'lld: Boles v Official Trustee in Bankruptcy [2001] FCA 639 at [16] , [2001] FCA 639 ; 183 ALR 239 at 243 per Emmett J (Katz and Conti JJ agreeing). There is certainly no basis upon which such a state of " satisfaction " could be reached in the present proceeding. Even if it were permissible to simply review the facts as known when the sequestration order was made, nothing has emerged other than to confirm that the order was then properly made; certainly, Ms Samootin has not been able to point to any " evidence of previously unknown facts " as at the date of the making of the order.


case_text: It should further be noted that Counsel for the Official Trustee also produced documents during the course of the hearing on 4 July 2008. Purported Notices to Produce had been served by Ms Samootin. Objection was formally taken to producing the documents (inter alia ) upon the grounds that the terms in which they were expressed were oppressive and one of the Notices had been served upon a non-party. Notices to Produce can, of course, only be served upon a party ( Federal Court Rules , O 33, r 12(1)) and no leave is required to serve such a Notice : BP Australia Pty Ltd v Nyran Pty Ltd [2003] FCA 834. The requirement to obtain leave to compel the production of documents by a non-party by way of a subpoena imposed by O 27A, r 2 of the Federal Court Rules is not to be circumvented by an impermissible recourse to Notices to Produce . Presumably in the present proceeding Ms Samootin may well have been unaware of that distinction. Such documents as could be located in the time permitted, however, were produced. What further information or documents (if any) which Ms Samootin sought to be produced by the Official Trustee was not thereafter identified. 29 Insofar as the Amended Application sought the production by the Official Trustee of certain information, Ms Samootin accepted on 24 June 2008 that the information initially sought had since been produced. 30 It was not considered that either Ms Nash or Mr Golledge could give any evidence of relevance to the matters properly before this Court.


case_text: A person who seeks an annulment carries a " heavy burden ": Re Papps; Ex parte Tapp (1997) 78 FCR 524 at 531 per O'Loughlin J; Bulic v Commonwealth Bank of Australia Ltd [2007] FCA 307 at [12] per Tracey J. It is for an applicant who seeks an annulment to " bring himself within the section and satisfy the Court, that the sequestration order ought not to have been made ": Pollock v Deputy Commissioner of Taxation (1994) 94 ATC 4148 at 4153 per Carr J, citing Riley J in Re Calderon (Unreported, Federal Court of Bankruptcy, 31 May 1977).


case_title: Calverley v Green (1984) 155 CLR 242

case_text: On 4 July 2008 Ms Samootin added what she identified as a further three matters to be agitated, namely: (vii) an application for a finding that she has been the victim of " financial abuse ", the persons committing that " abuse " being her former husband and the First Respondent; (viii) an application for a finding that she has been the victim of " legal and civil abuse ", those committing that abuse being the Supreme Court of New South Wales, the Third Respondent and the solicitor and Counsel now representing the Third Respondent; and (ix) an application that a finding be made that Palmer J erred in " utilising ... the principles set out in Calverley v Green " (1984) 155 CLR 242. 26 On 30 June 2008 Ms Samootin also sought leave to issue Subpoenas addressed to: (a) Mr Stephen Golledge; (b) Ms Sally Nash; and (c) Mr Tibor Karolyi, an Assistant Official Receiver. Leave to issue those Subpoenas was then refused but the application was stood over to the resumed hearing on 4 July 2008 in order to further explore the matter, should Ms Samootin have then seen fit to do so. 27 The deponent to the Affidavit which had been filed on behalf of the Official Trustee was Mr Karolyi. At the resumed hearing, Counsel for the Official Trustee read that Affidavit and the deponent was available for cross-examination. No question thereafter arose as to any necessity to issue a subpoena to him. The questions asked of him by Ms Samootin, it is further considered, plainly provided an account to her as to the realisation of assets and the payment of debts. 49 Nor is it a matter for this Court to comment upon any error alleged by the Applicant to have been made by his Honour Justice Palmer in respect to his application of " the principles set out in Calverley v Green ". 50 As was made very apparent to Ms Samootin during the course of the hearing on 4 July 2008, it was considered that any submission that there had been " legal and civil abuse " was (at the very least) misplaced. That phrase was explained in her further Outline of Written Submissions as meaning a "[d] enial of access to justice or legal systems that are available to other citizens ". 51 No further particulars of the complaint have been provided. The facts deny any support whatsoever to the submission. Rather than being denied " access to justice ", even a cursory review of the proceedings in which Ms Samootin has been involved exposes her being extended every opportunity (and repeated opportunities) to ventilate her grievances.


case_text: Moreover, s 153B confers a discretion -- even if the Court is satisfied that an order " ought not to have been made ", there thereafter remains a discretion as to whether a bankruptcy should be annulled: cf Delph Sing v Wood [1918] HCA 69 , 25 CLR 497 at 498 9, 505 per Barton, Gavan Duffy and Rich JJ; Re Williams (1968) 13 FLR 10 at 23 per Gibbs J; Re Deriu (1970) 16 FLR 420 at 421 per Gibbs J. Relevant to the exercise of that discretion is Ms Samootin's solvency. Such evidence as is before the Court shows that she remains insolvent. The further Affidavit as filed on 17 July 2008 does not lead to any different conclusion. If the occasion for the exercise of the discretion had arisen, it would have been exercised adversely to her.


case_text: The manner in which s 153B is to be applied has been summarised as follows by Carr, Finn and Sundberg JJ in Heinrich v Commonwealth Bank of Australia [2003] FCAFC 315: [20] The Court must first consider whether the sequestration order ought not to have been made. If it so finds, then the Court must consider whether, in the exercise of its discretion, the bankruptcy should be annulled: Re Deriu (1970) 16 FLR 420. Later evidence of previously unknown facts may disclose matters which show that the sequestration order ought not to have been made. That is, the Court is entitled to consider not only the case as disclosed at the time when the sequestration order was made, but also those facts now known then to have existed. The Court excludes those facts which have occurred since the order was made. Later evidence of previously unknown facts may disclose matters which show that the sequestration order ought not to have been made: Re Frank; Ex parte Piliszky (1987) 16 FCR 396 ; Stankiewicz v Plata [2000] FCA 1185 at [19] ; Re Williams (1968) 13 FLR 10 at 23; Re Ditfort; Ex parte Deputy Commissioner of Taxation (1988) 19 FCR 347. These authorities, all of which were cited by the learned primary judge in his judgment, were accepted at first instance as reflecting the relevant law. The section thus contemplates two elements: the Court reaching a state of satisfaction that an order " ought not to have been made " and an exercise of discretion: Rigg v Baker [2006] FCAFC 179 at [59] , [2006] FCAFC 179 ; 155 FCR 531 at 543 per French J.


case_title: Pollock v Deputy Commissioner of Taxation (1994) 94 ATC 4148


case_text: The annulment of the bankruptcy was acknowledged by Ms Samootin as a primary claim for relief. But, and as was pointed out to her during the proceeding, the issues which she now wishes to pursue have previously been the subject of judicial determination. The observation as made by Palmer J in 2003 is equally as apposite today as it was in 2003. The tortuous path of litigation which has been pursued by Ms Samootin, involving both herself and others, is truly " tragic ". But at the end of the day there is a need for finality in litigation, and the issues presently sought to be pursued have either previously been resolved, or are so closely aligned with issues previously resolved that Ms Samootin should not now be permitted to relitigate afresh the issues encompassed by her Amended Application : Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 ; (1981) 147 CLR 589.


case_title: Re Calderon (Unreported, Federal Court of Bankruptcy, Riley J, 31 May 1977)


case_text: The manner in which s 153B is to be applied has been summarised as follows by Carr, Finn and Sundberg JJ in Heinrich v Commonwealth Bank of Australia [2003] FCAFC 315: [20] The Court must first consider whether the sequestration order ought not to have been made. If it so finds, then the Court must consider whether, in the exercise of its discretion, the bankruptcy should be annulled: Re Deriu (1970) 16 FLR 420. Later evidence of previously unknown facts may disclose matters which show that the sequestration order ought not to have been made. That is, the Court is entitled to consider not only the case as disclosed at the time when the sequestration order was made, but also those facts now known then to have existed. The Court excludes those facts which have occurred since the order was made. Later evidence of previously unknown facts may disclose matters which show that the sequestration order ought not to have been made: Re Frank; Ex parte Piliszky (1987) 16 FCR 396 ; Stankiewicz v Plata [2000] FCA 1185 at [19] ; Re Williams (1968) 13 FLR 10 at 23; Re Ditfort; Ex parte Deputy Commissioner of Taxation (1988) 19 FCR 347. These authorities, all of which were cited by the learned primary judge in his judgment, were accepted at first instance as reflecting the relevant law. The section thus contemplates two elements: the Court reaching a state of satisfaction that an order " ought not to have been made " and an exercise of discretion: Rigg v Baker [2006] FCAFC 179 at [59] , [2006] FCAFC 179 ; 155 FCR 531 at 543 per French J. 40 Moreover, s 153B confers a discretion -- even if the Court is satisfied that an order " ought not to have been made ", there thereafter remains a discretion as to whether a bankruptcy should be annulled: cf Delph Sing v Wood [1918] HCA 69 , 25 CLR 497 at 498 9, 505 per Barton, Gavan Duffy and Rich JJ; Re Williams (1968) 13 FLR 10 at 23 per Gibbs J; Re Deriu (1970) 16 FLR 420 at 421 per Gibbs J. Relevant to the exercise of that discretion is Ms Samootin's solvency. Such evidence as is before the Court shows that she remains insolvent. The further Affidavit as filed on 17 July 2008 does not lead to any different conclusion. If the occasion for the exercise of the discretion had arisen, it would have been exercised adversely to her.


case_text: The manner in which s 153B is to be applied has been summarised as follows by Carr, Finn and Sundberg JJ in Heinrich v Commonwealth Bank of Australia [2003] FCAFC 315: [20] The Court must first consider whether the sequestration order ought not to have been made. If it so finds, then the Court must consider whether, in the exercise of its discretion, the bankruptcy should be annulled: Re Deriu (1970) 16 FLR 420. Later evidence of previously unknown facts may disclose matters which show that the sequestration order ought not to have been made. That is, the Court is entitled to consider not only the case as disclosed at the time when the sequestration order was made, but also those facts now known then to have existed. The Court excludes those facts which have occurred since the order was made. Later evidence of previously unknown facts may disclose matters which show that the sequestration order ought not to have been made: Re Frank; Ex parte Piliszky (1987) 16 FCR 396 ; Stankiewicz v Plata [2000] FCA 1185 at [19] ; Re Williams (1968) 13 FLR 10 at 23; Re Ditfort; Ex parte Deputy Commissioner of Taxation (1988) 19 FCR 347. These authorities, all of which were cited by the learned primary judge in his judgment, were accepted at first instance as reflecting the relevant law. The section thus contemplates two elements: the Court reaching a state of satisfaction that an order " ought not to have been made " and an exercise of discretion: Rigg v Baker [2006] FCAFC 179 at [59] , [2006] FCAFC 179 ; 155 FCR 531 at 543 per French J. 34 In the present proceeding Ms Samootin did not establish any reason why the sequestration order " ought not to have been made ". And the task to be undertaken pursuant to that provision is not a task of the Court reviewing afresh the facts as at the date of the making of the sequestration order, but rather the very much more confined task of considering whether the person making the order was " bound " not to have made it: cf Re Frank; Ex parte Piliszky (1987) 16 FCR 396 at 403. Fisher J there concluded: In the light of the various contrasting avenues open to a bankrupt to approach the court to have the sequestration order set aside, it is in my opinion necessary to attach significance to the "careful provisions" of s 154 , and in particular the words "ought not to have been made". In my opinion it can be said that a judge "ought" not to have made an order only if he was "bound" not to make the order. In circumstances where it was open to a judge to make an order in the exercise of his discretion, it can only be said he "ought not to have made the order" if none of the circumstances could justify the making of an order. Alternatively it can be established that an order "ought" not to have been made because subsequent evidence discloses that all of the true facts were not before the court when the order was made: Re Cook (1946) 13 ABC 245 at 249. F'lld: Boles v Official Trustee in Bankruptcy [2001] FCA 639 at [16] , [2001] FCA 639 ; 183 ALR 239 at 243 per Emmett J (Katz and Conti JJ agreeing). There is certainly no basis upon which such a state of " satisfaction " could be reached in the present proceeding. Even if it were permissible to simply review the facts as known when the sequestration order was made, nothing has emerged other than to confirm that the order was then properly made; certainly, Ms Samootin has not been able to point to any " evidence of previously unknown facts " as at the date of the making of the order.


case_title: Re Papps; Ex parte Tapp (1997) 78 FCR 524


case_title: Re Williams (1968) 13 FLR 10


case_title: Rigg v Baker [2006] FCAFC 179 , 155 FCR 531


case_text: Separate proceedings have also been pursued in this Court by Ms Samootin claiming relief that Ms Sally Nash, a solicitor, be " estopped from entering into contract negotiations " on Ms Samootin's behalf: Samootin v Insolvency & Trustee Service Australia [2007] FCA 1596. The involvement of Ms Nash arose out of a judgment previously given by Hammerschlag J of the Supreme Court of New South Wales. The relief claimed in this Court was refused: Samootin v Official Trustee in Bankruptcy [2007] FCA 1618. In dismissing the application, Jacobson J observed: [3] What I have been told this morning both by Ms Samootin and Ms Nash merely serves to confirm the observation made by Palmer J four years ago that this is a tragic case. However, that being said, it is not one which can be determined otherwise than in accordance with ordinary legal principles. The short answer to Ms Samootin's application is threefold. [4] First, her interest in the subject property vested in the Official Trustee in Bankruptcy when the sequestration order was made on 24 May 2006. [5] Second, the quantum of Ms Samootin's interest in the subject property has now been determined by the Supreme Court of New South Wales. [6] Third, the entitlement of Ms Samootin to remain on the property was conditional upon compliance with arrangements initially made with the registered proprietor, but subsequently formalised in an undertaking given to the Supreme Court of New South Wales and recorded in orders made by Hammerschlag J, initially on 17 July 2007 and corrected on 30 July 2007. His Honour thereafter continued as follows: [18] The substance of Ms Samootin's application is based upon her contention that Ms Nash entered into contracts on Ms Samootin's behalf allegedly in breach of the provisions of the Consumer Credit (New South Wales) Act 1995 (NSW). Ms Samootin submitted that she did not sign any mortgage and that it was not open to Ms Nash to agree on her behalf to make the payments recorded in the undertaking set forth in para 15A of Justice Hammerschlag's orders. [19] In my view, Ms Samootin's submission must be rejected. It has to be borne in mind first that Ms Samootin's interest in the property has, as I have said, vested in the Official Trustee in Bankruptcy. Second, and perhaps more importantly for present purposes, the undertaking to which Hammerschlag J referred was given by Ms Samootin. There is no question in my opinion that Ms Nash entered into any contract on behalf of Ms Samootin. Accordingly it cannot be suggested that there was any breach of the Consumer Credit Act as contended by Ms Samootin this morning. 41 It is similarly considered that the application to " void the Consent Orders " as made by Ms Nash should be refused. On 24 June 2008 those " Consent Orders " were identified as being those made on 17 July 2007 and as amended on 30 July 2007. Those orders were made in the proceedings before Hammerschlag J in the Supreme Court of New South Wales. 42 Ms Nash made no " Consent Orders "; she signed orders made by a court on behalf of her client. And, in any event, the involvement of Ms Nash in the various proceedings to date has also previously been the subject of prior judicial determination.


case_text: Separate proceedings have also been pursued in this Court by Ms Samootin claiming relief that Ms Sally Nash, a solicitor, be " estopped from entering into contract negotiations " on Ms Samootin's behalf: Samootin v Insolvency & Trustee Service Australia [2007] FCA 1596. The involvement of Ms Nash arose out of a judgment previously given by Hammerschlag J of the Supreme Court of New South Wales. The relief claimed in this Court was refused: Samootin v Official Trustee in Bankruptcy [2007] FCA 1618. In dismissing the application, Jacobson J observed: [3] What I have been told this morning both by Ms Samootin and Ms Nash merely serves to confirm the observation made by Palmer J four years ago that this is a tragic case. However, that being said, it is not one which can be determined otherwise than in accordance with ordinary legal principles. The short answer to Ms Samootin's application is threefold. [4] First, her interest in the subject property vested in the Official Trustee in Bankruptcy when the sequestration order was made on 24 May 2006. [5] Second, the quantum of Ms Samootin's interest in the subject property has now been determined by the Supreme Court of New South Wales. [6] Third, the entitlement of Ms Samootin to remain on the property was conditional upon compliance with arrangements initially made with the registered proprietor, but subsequently formalised in an undertaking given to the Supreme Court of New South Wales and recorded in orders made by Hammerschlag J, initially on 17 July 2007 and corrected on 30 July 2007. His Honour thereafter continued as follows: [18] The substance of Ms Samootin's application is based upon her contention that Ms Nash entered into contracts on Ms Samootin's behalf allegedly in breach of the provisions of the Consumer Credit (New South Wales) Act 1995 (NSW). Ms Samootin submitted that she did not sign any mortgage and that it was not open to Ms Nash to agree on her behalf to make the payments recorded in the undertaking set forth in para 15A of Justice Hammerschlag's orders. [19] In my view, Ms Samootin's submission must be rejected. It has to be borne in mind first that Ms Samootin's interest in the property has, as I have said, vested in the Official Trustee in Bankruptcy. Second, and perhaps more importantly for present purposes, the undertaking to which Hammerschlag J referred was given by Ms Samootin. There is no question in my opinion that Ms Nash entered into any contract on behalf of Ms Samootin. Accordingly it cannot be suggested that there was any breach of the Consumer Credit Act as contended by Ms Samootin this morning. 55 Given the repeated litigation of the same issues, it is further considered that Ms Samootin should be ordered to pay the costs of the Respondents in the present proceeding on an indemnity basis. A further order precluding Ms Samootin from bringing further proceedings has also been sought. Although the time when such an order should be made may rapidly be approaching, it is not considered that such an order should now be made. It may be noted that a like application was made to Jacobson J in October 2007 and then also declined: Samootin v Official Trustee in Bankruptcy [2007] FCA 1618 at [22] . 56 After the hearing on 4 July 2008 further material was filed by Ms Samootin. The matter was accordingly relisted on 16 July 2008 in order that the Respondents could be given copies of this further material and to determine whether they opposed that further material being considered. There was no opposition and the further material was considered. Ms Samootin was then informed, however, that after 16 July 2008 no further material would be considered. Ms Samootin has been extended every opportunity to place before the Court such material as she wanted to be taken into account. There is an obvious need for there to be finality in the presentation of both the evidence and submissions which any party, including an unrepresented party, wants considered. Notwithstanding that, a further Affidavit was in fact filed on 17 July 2008. With the concurrence of the Respondents, this further Affidavit has also been read and considered. 57 The orders of the Court are: 1. The Amended Application as filed on 16 June 2008 be dismissed. 2. The Applicant to pay the costs of the Respondents on an indemnity basis. I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick. Associate: Dated: 21 July 2008 The Applicant: The Applicant appeared in person Counsel for the First and Second Respondents: K Dawson Solicitor for the First and Second Respondents: Mallesons Stephen Jacques Counsel for the Third Respondent: S Golledge Solicitor for the Third Respondent: Sally Nash & Co Dates of Hearing: 24 June 2008, 4 July 2008 Date of Judgment: 21 July 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1066.html


case_text: An appeal against the decision of Jacobson J was dismissed when there was no appearance by Ms Samootin: Samootin v Official Trustee in Bankruptcy [2008] FCA 914. 24 The Amended Application presently before the Court, and as explained by the Applicant on 24 June 2008, was understood to be: (i) an application to annul the bankruptcy order previously made on 24 May 2006; (ii) an application to " void the Consent Orders made by M/s Sally Nash "; (iii) an application that orders be made against the Official Trustee for the production to the Court of certain information; (iv) an application that this Court should make " observations " (in the event that it annuls the bankruptcy) to the effect that the Respondents should be " responsible " for their own costs incurred in other proceedings -- including proceedings in the Supreme Court; (v) an application that the Third Respondent should provide an " account " as to monies alleged to be remaining in the possession of Mr Deans but which should be paid to the estate of the Applicant; and (vi) an application that the First Respondent, Ms Wagner, should be found " guilty of professional negligence ".