case_text: In relation to manner of manufacture, the Full Court decisions in Bristol-Myers Squibb Company v FH Faulding [2000] FCA 316 ; (2000) 97 FCR 524 and Merck & Co Inc v Arrow Pharmaceuticals Ltd [2006] FCAFC 91 ; (2006) 154 FCR 31 establish that a party challenging the validity of a patent on this ground must demonstrate such invalidity by reference to matters that are apparent on the face of the specification, in light of the common general knowledge: see also Commissioner of Patents v Microcell Limited [1958] HCA 58 ; (1959) 102 CLR 232; NV Philips Gloeilampenfabrieken v Mirabella International Pty Limited [1995] HCA 15 ; (1995) 183 CLR 655. Rockwool, relying upon these cases, said it should not be required to discover any documents solely on the ground that they are relevant to the manner of manufacture. 25 CSR sought to distinguish those authorities on the ground that they were not concerned with an alleged non-disclosure of relevant material; and because despite the principle established in the cases, in practice the courts can and do refer to external evidence to consider the state of the prior art. In particular, it referred to Philips 183 CLR at 666-667, where the majority of the High Court stated that Strictly speaking, it is unnecessary to answer the question whether a process which could not be a proper subject matter for a patent according to traditional principle, for the reason that it is merely a new use of a known product, can none the less be a "manner of manufacture within the meaning of section 6 of the Statute of Monopolies" for the purposes of s 18(1)(a). However...it is appropriate that we indicate that we consider that the above construction of s 18(1)'s threshold requirement of "an invention" goes a long way towards answering it since it would border upon the irrational if a process which was in fact but a new use of an old substance could be a "patentable invention" under s 18 if, but only if, that fact were not disclosed by the specification. 26 Philips [1995] HCA 15 ; 183 CLR 655 was considered by the Full Federal Court in Bristol-Myers [2000] FCA 316 ; 97 FCR 524, where Black CJ and Lehane J said the following in relation to the requirement that a patentable invention be a manner of new manufacture (at [19] and [30]): A "patentable invention" must be an "invention" as defined, and thus a "manner of new manufacture the subject of letters patent and grant of privilege within s 6 of the Statute of Monopolies " The primary judge held, following NV Philips Gloeilampenfabrieken v Mirabella International Pty Ltd [1995] HCA 15 ; (1995) 183 CLR 655, that the opening words of s 18(1) impose a threshold requirement of inventiveness: a requirement independent of the specific provisions of s 18(1)(b) as to novelty and an inventive step, judged by comparison with the prior art base as it existed before the priority date. His Honour held that the claimed invention... did not meet that threshold requirement. He held also that it did not involve an inventive step when compared with the prior art base. His Honour's conclusions were based upon two findings. One of them involved an application of the well known principle which denies patentability to a claimed invention which is "nothing but a claim for the use of a known material in the manufacture of known articles for the purpose of which its known properties make that material suitable": Commissioner of Patents v Microcell Ltd [1958] HCA 58 ; (1959) 102 CLR 232 at 251... The majority of the High Court in Philips explicitly say that their observations about a case where want of the threshold requirement of inventiveness is not apparent on the face of the specification are not necessary to their decision. And, in discussing the commencement point (what is "known") of the inquiry about inventiveness, their Honours refer only to the Microcell principle. In our view, in the light of the authorities to which we have referred, Philips stands for the proposition (as a matter of construction of the 1990 Act) that if, on the basis of what was known, as revealed on the face of the specification, the invention claimed was obvious or did not involve an inventive step... then the threshold requirement of inventiveness is not met. Some elaboration, however, is required in relation to what the specification reveals as "known". If a patent application, lodged in Australia, refers to information derived from a number of prior publications referred to in the specification or, generally, to matters which are known, in our view the Court or the Commissioner would ordinarily proceed upon the basis that the knowledge thus described is, in the language of s 7(2) of the 1990 Act, part of "the common general knowledge as it existed in the patent area". In other words, what is disclosed in such terms may be taken as an admission to that effect. In substance, we think, that is what happened, both in Microcell and in Philips . If, however, the body of prior knowledge disclosed by the specification is insufficient to deprive what is claimed of the quality of inventiveness, then the only additional knowledge or information which will be taken into account is knowledge or information of a kind described in s 7(2) of the 1990 Act. That again, in our view, is consistent with the approach taken in Microcell. 27 Their Honours said in their reasons at [22] of the passage in Philips [1995] HCA 15 ; 183 CLR 655 quoted above and relied upon by CSR, that that observation was unnecessary to the decision, a fact which was acknowledged by the majority of the High Court at 666.


case_outcome: cited

case_text: The sufficiency of a patent has been described as "a pure question of fact in respect of which there may be discovery": Conor Medsystems Inc v University of British Columbia (No 3) (2006) 228 ALR 515 at [4]. 31 In Hoffman-La Roche 171 ALR at [11], Burchett J expressed the view that discovery of research documents "for a reasonable period beyond [the priority] date" may be justified where sufficiency of description is in issue, so long as the research is related to the disclosure contained in the specification. His Honour considered it unnecessary to decide whether an allegation of misrepresentation would provide a further ground for such discovery. However the Full Federal Court in Pfizer Overseas Pharmaceuticals v Eli Lilly and Co (2005) 225 ALR 416 held that sufficiency should be assessed having regard to the common general knowledge and prior art existing immediately before the priority date: at [328], cited in Conor 228 ALR [4]. The parties did not address this particular issue in their submissions on the present motion. In relation to the issue of false suggestion, CSR sought to rely upon certain observations made by Emmett J in ICI Chemicals and Polymers Ltd v Lubrizol Corporation Inc (1999) 45 IPR 577. That case was not concerned with issues of discovery; nevertheless CSR asserted that Emmett J's reasoning supports their application insofar as his Honour found that the relevant section of the Patents Act was concerned with statements of fact about which the applicant (for the patent) had knowledge and about which the Patent Office ordinarily would not (at [184]); and that it is not necessary to show that no grant would have been made "but for" the false suggestion or representation, so long as the representation was a "material inducing factor which led to the grant": at [170]. It is not immediately apparent how those passages assist CSR beyond the wording of s 138 itself.


case_outcome: discussed

case_title: Pfizer-Overseas Pharmaceuticals v Eli Lilly and Co (2005) 225 ALR 416

case_text: In Hoffman-La Roche 171 ALR at [11], Burchett J expressed the view that discovery of research documents "for a reasonable period beyond [the priority] date" may be justified where sufficiency of description is in issue, so long as the research is related to the disclosure contained in the specification. His Honour considered it unnecessary to decide whether an allegation of misrepresentation would provide a further ground for such discovery. However the Full Federal Court in Pfizer Overseas Pharmaceuticals v Eli Lilly and Co (2005) 225 ALR 416 held that sufficiency should be assessed having regard to the common general knowledge and prior art existing immediately before the priority date: at [328], cited in Conor 228 ALR [4]. The parties did not address this particular issue in their submissions on the present motion. In relation to the issue of false suggestion, CSR sought to rely upon certain observations made by Emmett J in ICI Chemicals and Polymers Ltd v Lubrizol Corporation Inc (1999) 45 IPR 577. That case was not concerned with issues of discovery; nevertheless CSR asserted that Emmett J's reasoning supports their application insofar as his Honour found that the relevant section of the Patents Act was concerned with statements of fact about which the applicant (for the patent) had knowledge and about which the Patent Office ordinarily would not (at [184]); and that it is not necessary to show that no grant would have been made "but for" the false suggestion or representation, so long as the representation was a "material inducing factor which led to the grant": at [170]. It is not immediately apparent how those passages assist CSR beyond the wording of s 138 itself.


case_outcome: considered

case_title: ICI Chemicals and Polymers Ltd v Lubrizol Corporation Inc (1999) 45 IPR 577


case_text: CSR referred to several authorities indicating that the Category 9 documents are not protected from disclosure by the doctrine of legal professional privilege: see, e.g. Eli Lilly and Company v Pfizer Ireland Pharmaceuticals [2004] FCA 850 ; (2004) 137 FCR 573. However, those authorities do not assist CSR in relation to the question of relevance. Furthermore, even if the Category 9 documents were privileged, such privilege would not relieve Rockwool of any obligation to provide discovery of them.


case_text: It is convenient to deal with Categories 1 to 4 of the claimed further discovery together, as they fall under the general rubric of Project Sleipner activities. I am not persuaded that the documents in respect of which further discovery is sought in those four categories are documents which fall within the reach of O 15 r 2(3) of the Rules. There is no material which, to my mind, reveals that Rockwool has not addressed in its discovery the prior art directly relevant to the assertion that the alleged inventions are not novel. Indeed, as I understood the submissions for CSR, the dispute arises because it claims that an incorrect assessment has been made by Rockwool about the materiality of the documents in Categories 1 to 4 rather than that their relevance has not been assessed at all by Rockwool. Of course, Rockwool's assessment of the extent to which such documents should be discovered is not conclusive. That is a matter for the Court. But, on the other hand, the existence of a document or documents which possibly touch upon an issue in question in the proceeding is not itself sufficient to order its discovery: Mulley v Manifold [1959] HCA 23 ; (1959) 103 CLR 341 at 344 345. That is a matter to be decided by the Court from the pleadings and the evidence on the application.


case_text: The class of the first category of documents, in my view, is not, by its description or by such information as there is as to its likely contents, of such a nature as to satisfy the "relevance" hurdle of O 15 r 2(3). The conferences and meetings referred to, and including the presentations by an employee or employees of Rockwool in April 1994 and in September 1992, are obviously not confined to the product claims concerning MMV fibres in Rockwool Patent #1 or the method of producing MMV fibres in Rockwool Patent #2. The fact that, at such conferences and meetings, there would have been information sharing between informed persons in the general industry does not indicate or tend to indicate that the information included information about the prior art concerning or leading up to the particular claims made in the two patents. Accordingly, I do not consider that there is a prima facie case that the conferences and meetings included in the exposure of information concerning whether the claimed inventions the subject of those patents involved an inventive step compared to the prior art. It is a case of the material relied upon by CSR not taking me over that threshold test. See the discussion by Tomlin J in Astra-National Productions Ltd v Neo-Art Productions Ltd [1928] WN 218 at 219. 58 That conclusion reflects the view I have come to, notwithstanding the careful and helpful submissions of senior counsel for CSR, that discovery in this matter should be confined to documents which relate directly to the particular issues concerning the validity of the two Rockwool patents in suit, and that wider inquiry of material concerning Project Sleipner generally or relating to other fibres or processes than the particular products and process the subject of the two patents will not expose documents which fall within the coverage of O 15 r 2(3) of the Rules. 59 I have reached the same conclusion in relation to the Category 1 documents, insofar as CSR contended that they may expose that the claimed characteristics of elements of the Rockwool Patents were previously well known and recognised by manufacturers of MMV fibres, so that documents of that class may support CSR's third ground of alleged invalidity. It is necessary for a prima facie case to be made out that the category of documents sought to be discovered, including of the two particular presentations specified, may adversely affect the case of Rockwool or may support the case of CSR. I am not satisfied that they might do so.


case_outcome: referred to

case_text: On 25 August 2004 the Minister's solicitor filed an application for summary dismissal which was made returnable on 1 September 2004. However, the applicant on 31 August 2004 filed a notice of discontinuance. Undeterred, on 24 September 2004 he made an application to this court for an extension of time to file and serve a notice of appeal against Einfeld J's decision. On 9 December 2004, Bennett J dismissed that application saying that she was of the view that the applicant had no prospects of success in an appeal based on a new argument put forward, if it were a new argument, and had not demonstrated any special reasons for the exercise of a discretion to extend the time for filing a notice of appeal: Applicant S1746 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1591 [36].


case_outcome: applied

case_text: I do not have to form a final view about those matters because my function is to consider the application as an interlocutory application in which leave to appeal must be obtained. In Bienstein v Bienstein [2003] HCA 7 ; (2003) 195 ALR 225 at 231 it was said at paragraph [29]: 'An applicant for leave must establish that the decision in question is attendant with sufficient doubt to warrant the grant of leave. He must also show that substantial injustice will result from refusal of leave to appeal.' 16 I am of the opinion that there is no sufficient doubt to warrant the grant of leave on the basis of the material in the application for leave to appeal or the applicant's affidavit of 12 December 2005, the draft notice of appeal, or the matters referred to in the judgment below. For those reasons the application is dismissed. 17 The Minister has applied for an order for costs fixed in the sum of $800. I note that in the court below, his Honour made an order that the applicant pay the costs on an indemnity basis. I am of the opinion that it is an appropriate case in which to make an order in the terms sought. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate: Dated: 15 March 2006 Applicant: In Person Counsel for the Respondent: A Markus Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 1 March 2006 Date of Judgment: 1 March 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/224.html


case_outcome: followed

case_text: His Honour concluded that the substantive application had no merit at all. I am of opinion that that is an unimpeachably correct finding. In Walton v Gardiner [1992] HCA 12 ; (1993) 177 CLR 378 at 392-393 Mason CJ, Deane and Dawson JJ said: 'The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness. Thus, it has long been established that, regardless of the propriety of the purpose of the person responsible for their institution and maintenance, proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail (see e.g. Metropolitan Bank v Pooley (1885) 10 App Cas 210 at pp 220-221; General Steel Industries Inc v Commissioner for Railways ( NSW) [1964] HCA 69 ; (1964) 112 CLR 125 at pp 128-130). Again, proceedings within the jurisdiction of a court will be unjustifiably oppressive and vexatious of an objecting defendant, and will constitute an abuse of process, if that court is, in all the circumstances of the particular case, a clearly inappropriate forum to entertain them (see, generally, Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55 ; (1990) 171 CLR 538). Yet again, proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings (see e.g. Reichel v Magrath (1889) 14 App Cas 665 at p 668; Connelly v Director of Public Prosecutions [1964] AC 1254 at pp 1361-1362). The jurisdiction of a superior court in such a case was correctly described by Lord Diplock in Hunter v Chief Constable of the West Midlands Police ([1982] AC 529 at p 536) as the "the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people".' 9 The basis on which the applicant sought leave to appeal is set out in his affidavit sworn 12 December 2005 and the draft notice of appeal of the same date. Before I embarked on the hearing of this matter I had the matter called outside the court. The applicant was given notice in a letter from the court dated 23 February 2006 that the matter would be heard today. Mr Markus who appears for the Minister, informed me that he had received a copy of that letter in his office on 24 February. Mr Markus said no communication had been received from the applicant in relation to today's hearing and there is no record of the court of any such communication. 10 The notice of appeal asserts that the trial Judge in the Federal Magistrates Court erred in holding that the delegate of the Minister had not given a biased decision based or that the original decision was not full of unreasonable and illogical applications in the delegate's mind.


case_text: In Zubair v Minister [2004] FCAFC 248 ; (2004) 139 FCR 344 at 352-354 [28] - [32] a Full Court of this Court held that any error affecting the decision of a delegate, including one which may go to jurisdiction, could not be relied on to challenge the subsequent decision on a merits review before the Tribunal. That is because the function of the Tribunal on review is to arrive at the correct and preferable decision: see Wilson v Minister for Aboriginal and Torres Strait Islander Affairs [1996] HCA 18 ; (1996) 189 CLR 1 at 18. Secondly, by electing to challenge the adverse decision by way of merits review an applicant invites the reviewer to apply to him or her a fair procedure in arriving at that correct and preferable decision. Therefore, one ignores the alleged errors attending the making of the original decision: see too: Twist v Randwick Municipal Council [1976] HCA 58 ; (1976) 136 CLR 106 at 116.


case_title: Twist v Randwick Municipal Council [1976] HCA 58 ; (1976) 136 CLR 106


case_text: In Zubair v Minister [2004] FCAFC 248 ; (2004) 139 FCR 344 at 352-354 [28] - [32] a Full Court of this Court held that any error affecting the decision of a delegate, including one which may go to jurisdiction, could not be relied on to challenge the subsequent decision on a merits review before the Tribunal. That is because the function of the Tribunal on review is to arrive at the correct and preferable decision: see Wilson v Minister for Aboriginal and Torres Strait Islander Affairs [1996] HCA 18 ; (1996) 189 CLR 1 at 18. Secondly, by electing to challenge the adverse decision by way of merits review an applicant invites the reviewer to apply to him or her a fair procedure in arriving at that correct and preferable decision. Therefore, one ignores the alleged errors attending the making of the original decision: see too: Twist v Randwick Municipal Council [1976] HCA 58 ; (1976) 136 CLR 106 at 116. 14 Whether or not Zubair would otherwise apply to the present applicant, one has only to consider the persistent litigation brought by the applicant challenging the rejection of his claims by the Tribunal to see that his Honour was justified in coming to the conclusion that the proceedings below ought be dismissed.


case_title: Re ACM Gold Ltd (1992) 34 FCR 530

case_text: By making the order that a meeting of members be convened to consider the proposed arrangement, the Court did no more than indicate that it was satisfied that the proposed arrangement outlined in the explanatory statement warranted consideration by members and the exercise of their commercial judgment, and that if the resolution proposed to be put at the meeting was passed by the majorities prescribed by s 411(4)(a)(ii) of the Act such a decision by the members could support an order by the Court that the proposed arrangement be approved. (See: Re ACM Gold Ltd (1992) 34 FCR 530 per O'Loughlin J at 535). 12 The requirement of s 411(17)(a) of the Act that the Court be satisfied that the arrangement has not been proposed for the purpose of enabling the takeover provisions of Ch 6 of the Act to be avoided, obliged the Court to consider whether a "break fee" of $2,600,000.00 that the directors of the plaintiff had bound the plaintiff to pay to IAMGOLD if another offer to buy the shares of the plaintiff caused the members to reject the proposed arrangement, could have affected the market in the plaintiff's shares and have infringed the spirit of the provisions of Ch 6 of the Act . Section 602 of the Act provides that it is a purpose of Ch 6 to ensure that acquisition of control over the voting shares of a corporation "takes place in an efficient, competitive and informed manner". (See: Re Northumberland Insurance Co Ltd (No 3) (1977) 3 ACLR 15). Observations on such a question are made in ASIC Policy Statements PS 60 (at 60.1 60.10) and PS 142 (at 142.18 142.19). In the absence of any relevant evidence, and on the assumption that ASIC has given due consideration to the question and has not elicited any material relevant to the purpose of the proposal that should be put before the Court, the Court may be satisfied that the purpose of IAMGOLD in participating in the proposed arrangement was to implement a merger with the plaintiff in the most efficient way and not to avoid the provisions of Ch 6. (See: Re ACM Gold Ltd per O'Loughlin J at 535-543).


case_title: Re Archaean Gold NL (1997) 23 ACSR 143

case_text: An 'ex parte' application made under s 411(1) of the Act obliges the plaintiff to draw to the Court's attention any potential problems in the application. (See: Re Archaean Gold NL (1997) 23 ACSR 143 per Santow J at 148). In addition, in some circumstances it may be necessary for the application to be conducted as an inquisitorial proceeding to enable the Court to determine whether it is satisfied that it is appropriate to make an order under s 411(1) of the Act . Of course, if an objector to the proposed arrangement has been given leave by the Court to be heard on the application, or has been joined as a defendant to the application, the proceeding can be conducted as an adversarial hearing in the ordinary way. (See: Statewest Credit Society Limited v Home Building Society Limited [2005] FCAFC 273).


case_title: Statewest Credit Society Limited v Home Building Society Limited [2005] FCAFC 273


case_text: Before making an order under s 411(1) the Court must be satisfied that the proposed explanatory statement provides sufficient disclosure of matters relevant to the proposed arrangement and be able to form the opinion that acceptance of such an arrangement by members could be regarded by reasonable business people to be a decision made for the benefit of members. (See: Re Sonodyne International Ltd (1995) 13 ACLC 221). 6 In the instant case the proposed arrangement to be put to the members for acceptance was that the whole of the shareholding in the plaintiff be acquired by IAMGOLD Corporation ("IAMGOLD") and that the plaintiff become a wholly owned subsidiary of IAMGOLD. In its terms the proposed arrangement, if approved by the Court, would effect a compulsory acquisition of all of the shares in the Plaintiff without compliance with the takeover provisions of Ch 6 of the Act . 7 Given that the proposed arrangement would bind all members (notwithstanding the terms of s 414 of the Act ) the Court had to have regard to whether the explanatory statement provided sufficient detail of the benefits and detriments of the proposed arrangement for members to be sufficiently informed to be able to make a commercial judgment on whether the proposed arrangement was in their interests. That is to say, the Court had to be satisfied that all information a member may regard as material to a decision on the proposed arrangement appeared to have been adequately disclosed.


case_text: Having regard to the fact that the members of the plaintiff were sufficiently informed by the explanatory statement to be able to determine for themselves whether it was in their interests for IAMGOLD to acquire their shares, and did so in overwhelming numbers, and having regard to the fact that all requirements of the Act have been met, I am satisfied that the Court should approve the arrangement pursuant to s 411(6) of the Act. (See: Re NRMA Ltd (No 2) [2000] NSWSC 408 ; (2000) 34 ACSR 261 per Santow J at 270). 14 Accordingly the order sought by the plaintiff that the proposed arrangement be approved will be made. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee. Associate: Dated: 13 March 2006 Counsel for the Applicant: L Wilk (24, 25 January 2006) S M Davies; L Wilk (13 March 2006) Solicitors for the Applicant: Blake Dawson Waldron Date of Hearing: 24, 25 January 2006, 13 March 2006 Date of Judgment: 13 March 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/230.html


case_text: The requirement of s 411(17)(a) of the Act that the Court be satisfied that the arrangement has not been proposed for the purpose of enabling the takeover provisions of Ch 6 of the Act to be avoided, obliged the Court to consider whether a "break fee" of $2,600,000.00 that the directors of the plaintiff had bound the plaintiff to pay to IAMGOLD if another offer to buy the shares of the plaintiff caused the members to reject the proposed arrangement, could have affected the market in the plaintiff's shares and have infringed the spirit of the provisions of Ch 6 of the Act . Section 602 of the Act provides that it is a purpose of Ch 6 to ensure that acquisition of control over the voting shares of a corporation "takes place in an efficient, competitive and informed manner". (See: Re Northumberland Insurance Co Ltd (No 3) (1977) 3 ACLR 15). Observations on such a question are made in ASIC Policy Statements PS 60 (at 60.1 60.10) and PS 142 (at 142.18 142.19). In the absence of any relevant evidence, and on the assumption that ASIC has given due consideration to the question and has not elicited any material relevant to the purpose of the proposal that should be put before the Court, the Court may be satisfied that the purpose of IAMGOLD in participating in the proposed arrangement was to implement a merger with the plaintiff in the most efficient way and not to avoid the provisions of Ch 6. (See: Re ACM Gold Ltd per O'Loughlin J at 535-543).


case_text: As I recently noted in a statutory interpretation case, it is always possible in hindsight to think of contractual or statutory language that would have more clearly addressed the issue now in dispute: Asciano Services Pty Ltd (formerly Pacific National (ACT) Limited) v Commissioner of Taxation [2008] FCA 1401 at [22] - [23] . As a general matter, however, hindsight arguments only highlight what is already apparent - in this case, that the Deed was not artfully drafted and cl 2.1(j) did not deal expressly with taking photographs. But I greatly doubt the Deed is properly described as ambiguous. Moreover, even if it is, in the absence of a presumption in favour of either side as to how the ambiguity should be resolved (and neither side sought to argue contra proferentem, likely because that would have required going behind the forbidden veil of the mediation: see [15] below), I do not find such hindsight arguments useful.


case_text: A settlement agreement is simply a species of contract, and the parties did not dispute that the proper approach to be taken in construing the terms of the Deed is an objective one based on text, purpose and context: Golf Australia Holdings Ltd v Buxton Construction Pty Ltd [2007] VSCA 200 ; Commissioner of Taxation v Hadidi [1994] FCA 1173 ; (1994) 51 FCR 453. Ultimately, the meaning of the Deed must be determined by what a reasonable person would have understood the language to mean, notwithstanding the subjective beliefs or intentions of the parties. Equally important, "[i]t is impermissible to construe a [settlement Deed] by looking at what the parties said or did during the course of the negotiations": Golf Australia at [28]. Indeed, as the parties acknowledged, they and the Court are precluded by statute from inquiring into what was said and done in the course of the mediation: Federal Court of Australia Act 1976 (Cth) s 53B. The upshot is that, while the Court may consider extrinsic evidence to construe the Deed, it may only do so to establish the mutual understandings of the parties forming the background to the transaction, not the back-and-forth of the parties in concluding the transaction.


case_title: Golf Australia Holdings Ltd v Buxton Construction Pty Ltd [2007] VSCA 200


case_text: Another matter referred to by counsel was alluded to in the decision of the Federal Magistrate concerning the possible application of Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 ; (2003) 216 CLR 473 ( " S395/2002 v MIMA") . At page 3 of the Federal Magistrate's judgment in the present case, the Magistrate refers to a statement by in the RRT's decision which reads: 'As noted in the country information cited above there is a history of violence between the Hindu and Muslim communities in India but the applicant's experience in dealing with this situation will, in the Tribunal's view, enable him on return to act with sufficient care as to avoid situations in which he would be likely to suffer violence.'


case_text: Two other matters were raised by counsel for the respondent. Neither of these issues was referred to by the appellant. The first issue raised was whether the decision in Minister for Immigration and Multicultural Affairs v Al Shamry [2001] FCA 919 ; (2001) 110 FCR 27 applied in the present circumstances. Having regard to the cases referred to by counsel for the respondent, including the decisions of Gray J in M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131 (" M55 v MIMIA") and the decision of Jacobson J in NAZY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 744 ( "NAZY v MIMIA") , I am persuaded that in the present case the material in the file which was before the Department was incorporated in the Application for Review to the RRT. 6 Counsel has also referred me to the recent decision of the Full Court in a number of cases including SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 , which was handed down on 24 February 2006 after the decision of the Federal Magistrate in this matter. In my view, having looked at the reasons for judgment in that case, I am not persuaded that they vary the position in any way from the position taken in NAZY v MIMIA or in M55 v MIMIA . Accordingly, I do not consider that there is any basis for a contention that there has been a breach of s 424A.


case_text: Two other matters were raised by counsel for the respondent. Neither of these issues was referred to by the appellant. The first issue raised was whether the decision in Minister for Immigration and Multicultural Affairs v Al Shamry [2001] FCA 919 ; (2001) 110 FCR 27 applied in the present circumstances. Having regard to the cases referred to by counsel for the respondent, including the decisions of Gray J in M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131 (" M55 v MIMIA") and the decision of Jacobson J in NAZY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 744 ( "NAZY v MIMIA") , I am persuaded that in the present case the material in the file which was before the Department was incorporated in the Application for Review to the RRT.


case_title: NAZY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 744


case_text: Counsel has also referred me to the recent decision of the Full Court in a number of cases including SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 , which was handed down on 24 February 2006 after the decision of the Federal Magistrate in this matter. In my view, having looked at the reasons for judgment in that case, I am not persuaded that they vary the position in any way from the position taken in NAZY v MIMIA or in M55 v MIMIA . Accordingly, I do not consider that there is any basis for a contention that there has been a breach of s 424A.


case_outcome: affirmed

case_title: SZHKK v Minister for Immigration and Citizenship [2007] FMCA 842

case_text: The nature of the appellant's claims, the essence of the Tribunal's reasoning and the reasons of the Magistrate are set out in the decision of the court below, which is available on the Internet: SZHHK v Minister for Immigration and Multicultural Affairs [2007] FMCA 842. It is not necessary to repeat that material other than to say that the appellant's claim was that he had a well-founded fear of persecution by reason of his Christianity. He claimed to be the leader of an underground church and that his home had been searched by authorities. 3 Before the Federal Magistrates Court the grounds of review were: first: the Tribunal failed to carry out its statutory duty; and secondly: the Tribunal had bias against the appellant and did not believe that he was a leader of an underground church in China or even a Christian. 4 On the appeal to this Court the appellant's grounds were: first: the Tribunal had bias against him and failed to consider his application according to s 91R of the Migration Act 1958 (Cth); secondly: the Tribunal failed to consider his application according to s 424A of the Act; thirdly: the Tribunal failed to notify him of the reason or part of the reason for affirming the decision; and fourthly: the appellant was not given an opportunity to explain his case.


case_title: Fox v Olsen [1999] SASC 411

case_text: is likely to be a saving of time if the proceedings are tried together, but it is difficult to quantify the extent of the saving. It would be nowhere near the substantial saving referred to in Fox v Olsen [1999] SASC 411 at [7] per Mullighan J (with whom Doyle CJ and Wicks J agreed). It seems to me that 2 weeks is a reasonable estimate for the trial of the proceeding brought by Mr Humphries. It is difficult to be precise about an estimate of trial time if all proceedings are tried at the same time, but, doing the best I can, I proceed on the basis of an estimate of 4-8 weeks. If tried separately, the proceedings involving Mr Humphries would, as I have said, take 2 weeks and the other 7 proceedings would take 1-2 weeks each. There is a real prospect that the parties in those 7 proceedings would not contest a number of findings of fact made in the first proceeding and therefore, if they did proceed, the estimate for each proceeding would be closer to 1 week than to 2 weeks. Trial management issues are likely to loom large if all proceedings are tried together. It would be necessary to put in place detailed and possibly complex procedural orders to ensure the trial proceeded in an orderly fashion. There is considerable potential for time-consuming arguments about the cross-admissibility of evidence. Counsel would need to be alert to the evidence rulings about cross-admissibility. These problems are by no means insurmountable, but they are a reason not to order that the proceedings be tried together. The proceeding involving Mr Humphries is further advanced, in terms of preparation for trial, than any of the other proceedings.


case_text: In England it has been suggested that Anshun estoppel does not apply to judicial review proceedings: R v Secretary of State for the Environment; Ex parte Hackney London Borough Council [1984] 1 All ER 358, [1984] 1 All ER 956. But that is not the position in Australia and an Anshun estoppel may be invoked in a proceeding such as the present: Taylor v Ansett Transport Industries Ltd (1987) 18 FCR 342 ; Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 242 at [39] , [2004] FCA 51 ; 146 FCR 10 at 18; Australian Education Union v Lawler [2008] FCAFC 135 at [177] per Jessup J (Moore and Lander JJ agreeing); SZBJM v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 404 at [15] [18] per Madgwick J. See also: Campbell E, Relitigation in Government Cases: A Study of the Use of Estoppel Principles in Public Law Litigation (1994) 20 Mon Univ L Rev 21.


case_title: Brock v Minister for Justice and Customs [2007] FCA 2091 , 243 ALR 315

case_text: But the weakness of the position of Mr Tervonen is the fact that any such challenge which sought to impugn the validity of the request was properly the subject-matter of proceedings (in this case) seeking to impugn the decision made by the Minister under s 16 when giving effect to that request. The present proceeding was not commenced at the outset and before any decision authorised by the 1988 Act was made; the present proceeding was commenced only after all other attempts to challenge the decisions to give effect to the request proved unsuccessful. Compare: Brock v Minister for Justice and Customs [2007] FCA 2091 at [72] [74], [2007] FCA 2091 ; 243 ALR 315 at 332. Even if such an application is not itself foreclosed by Kainhofer , it is now too late to allow such an application to be pursued. 40 To now permit such a proceeding to continue would be an abuse of process. 41 The Amended Application should be dismissed pursuant to O 20 r 5 of the Federal Court Rules .


case_text: An abuse of process, it may be noted, may arise where the same point has been resolved in earlier litigation in another court, even though there may be no res judicata or issue estoppel: Coffey v Secretary, Department of Social Security [1999] FCA 375 , 86 FCR 434. It was there concluded that it would be an abuse of process to permit the appellant to pursue proceedings in the Federal Court in respect to the recovery of social security benefits in circumstances where the issue had been canvassed by means of a " comprehensive and multi-level process for the review of decisions " under the Social Security Act 1991 (Cth). Von Doussa, Branson and Sundberg JJ there observed: [25] An attempt to litigate in the Court a dispute or issue which has been resolved in earlier litigation in another court or tribunal may constitute an abuse of process even though the earlier proceeding did not give rise to a res judicata or issue estoppel.... Whether it does depends on the facts of the particular case. ... Their Honours went on to conclude: ... In the present case the circumstances are these. First, the Parliament has made available a comprehensive and multi-level process for the review of decisions under the Act. Secondly, the appellant has had three reviews under the procedures thus made available. Thirdly, the respondent and his officers have been vexed already by these reviews, especially those before the two Tribunals. In our view, for the Court to allow the appellant to relitigate his claim that the respondent was not entitled to withhold from his benefits the amount of the alleged overpayment, would be to permit its process to be employed in a manner unfair to the respondent. The maintenance of the debt claim is an abuse of process, and should be dismissed.


case_title: Dutton v Republic of South Africa [1999] FCA 1016 , 92 FCR 575

case_text: There is a public interest in all litigation, including extradition cases, for all issues to be resolved at the one time. In extradition cases it is thus recognised that a person against whom extradition is sought is " obliged, when challenging extradition proceedings ... to bring forward his whole case ": Dutton v Republic of South Africa [1999] FCA 1016 at [9] , [1999] FCA 1016 ; 92 FCR 575 at 577 per Wilcox, Whitlam and Moore JJ. 28 The decision of Gyles J correctly, with respect, concluded that the argument sought to be pursued was foreclosed by the decision in Kainhofer. To now permit the same argument to be advanced, albeit against a different respondent, would be an abuse of process as it would be the pursuit of litigation already resolved against a party and litigation having no prospects of success.


case_text: The decision thus involves an evaluative judgment as to whether it was " unreasonable " not to have raised an argument in earlier proceedings. See also: Ling v Cth [1996] FCA 1646 ; (1996) 68 FCR 180 at 195 per Sundberg J (Wilcox and Whitlam JJ agreeing).


case_text: The first two notices have been the subject of a proceeding before a judge of this Court at first instance: Tervonen v Minister for Justice and Customs (No 2) [2007] FCA 1684 , 98 ALD 589. And there was then an appeal from that decision: Minister for Home Affairs v Tervonen [2008] FCAFC 24 , 166 FCR 91. An application for special leave to appeal was filed with the Sydney Registry of the High Court of Australia on 19 March 2008. 16 The appeal to the Full Court was allowed in part: Minister for Home Affairs v Tervonen [2008] FCAFC 24 , 166 FCR 91. No argument as to the meaning of the words " accused " or " offence " occurred in the Full Court. No notice of contention was filed on behalf of Mr Tervonen seeking to raise any such argument before the Full Court. 17 The contention of the Minister is simply that the very argument now sought to be raised was either in fact raised and resolved against Mr Tervonen at first instance (notwithstanding the appeal being successful in part) or, if not raised, ought reasonably to have been raised. Moreover, and in the absence of a notice of contention having been filed with the Full Court, the Minister now submits that it is too late for the argument to be raised in this proceeding. 18 Mr Tervonen's contention is equally simple -- he contends that for the purposes of s 16 (and s 19) of the 1988 Act, any conclusion that the warrants, as issued and relied upon by Finland, are in respect to an " offence " is not the task to be undertaken by those provisions. Section 16 entrusts to the Attorney-General the task of reaching an " opinion " and the task entrusted to the Magistrate under s 19 is that of reaching a state of " satisfaction ". It was only the lawfulness of the " opinion " reached by the Minister which was in issue, or so it is contended. Whether the " extradition request " was a request which could lawfully be made, so the argument was understood, was not resolved.


case_text: In Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 ; (1981) 147 CLR 589 it was concluded that reliance could not be placed upon an indemnity agreement as it should have been earlier relied upon as a defence. Gibbs CJ, Mason and Aickin JJ there observed that " this is not a case of issue estoppel in the strict sense ". Their Honours continued at 598: The critical issue, then, is whether the case falls within the extended principle expressed by Sir James Wigram VC in Henderson v Henderson [(1843) 3 Hare 100 , 67 ER 313]. The Vice-Chancellor expressed the principle in these terms: "where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time." And at 602 their Honours concluded: ... In this situation we would prefer to say that there will be no estoppel unless it appears that the matter relied upon as a defence in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it. ... 23 In England it has been suggested that Anshun estoppel does not apply to judicial review proceedings: R v Secretary of State for the Environment; Ex parte Hackney London Borough Council [1984] 1 All ER 358, [1984] 1 All ER 956. But that is not the position in Australia and an Anshun estoppel may be invoked in a proceeding such as the present: Taylor v Ansett Transport Industries Ltd (1987) 18 FCR 342 ; Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 242 at [39] , [2004] FCA 51 ; 146 FCR 10 at 18; Australian Education Union v Lawler [2008] FCAFC 135 at [177] per Jessup J (Moore and Lander JJ agreeing); SZBJM v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 404 at [15] [18] per Madgwick J. See also: Campbell E, Relitigation in Government Cases: A Study of the Use of Estoppel Principles in Public Law Litigation (1994) 20 Mon Univ L Rev 21. 25 In discharging the evaluative process envisaged by Anshun estoppel, and whether it was " reasonable " for Mr Tervonen to have raised the argument earlier, consideration has been given to the fact that the Applicant is a person detained in custody. But that status assumes little if any importance when it is further borne in mind that he was represented by Counsel in the proceeding at first instance. No explanation has been forthcoming as to why the present argument was not previously advanced. 31 In Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 242 at [38] [39], [2004] FCA 51 ; 146 FCR 10 at 17 18 Emmett, Conti and Selway JJ noted that Anshun estoppel has been applied to proceedings in the nature of review of administrative action " insofar as Anshun estoppel is aimed at avoiding abuse of process ". Their Honours further observed, however, that " there will be instances where, even though there is every reason why the matter should have been raised earlier but was not, there are special circumstances that prevail to permit a party to raise the issue in a subsequent proceeding ": at [38]. Where the beneficiary of an Anshun estoppel, their Honours observed, " is a Minister of State, who has no personal interest in the outcome of a proceeding, such a principle may be of only secondary significance ": at [39].


case_title: R v Secretary of State for the Environment; Ex parte Hackney London Borough Council [1984] 1 All ER 358, [1984] 1 All ER 956


case_text: But what has been the subject of challenge is the response of the Respondent Minister upon receipt of that request. The then Minister issued a notice pursuant to s 16 of the Extradition Act 1988 (Cth) on 18 August 2006; the Minister also issued an " amended notice " on 30 April 2007. A further notice pursuant to s 16 was issued on 11 November 2007 in respect to the same request. 8 The manner in which Mr Tervonen contends that the request does not comply with the Treaty is understood to be a contention that the request made by Finland was not in respect to " an offence or offences against the law " of Finland within the meaning of, and for the purposes of, s 6(a)(i) of the Extradition Act 1988 (Cth). 9 Section 6 of the Extradition Act 1988 (Cth) provides as follows: Meaning of extraditable person Where: (a) either: (i) a warrant is or warrants are in force for the arrest of a person in relation to an offence or offences against the law of a country that the person is accused of having committed either before or after the commencement of this Act; or (ii) a person has been convicted of an offence or offences against the law of a country either before or after the commencement of this Act and: (A) there is an intention to impose a sentence on the person as a consequence of the conviction; or (B) the whole or a part of a sentence imposed on the person as a consequence of the conviction remains to be served; (b) the offence or any of the offences is an extradition offence in relation to the country; and (c) the person is believed to be outside the country; the person is, for the purposes of this Act, an extraditable person in relation to the country. 10 The argument now being advanced by Mr Tervonen focuses upon the meaning to be given to the words " accused " or " offence ". He contends that the extradition request as made, and the supporting material provided, expose the fact that some of the warrants relied upon by Finland were warrants for his arrest for pre-trial investigation purposes rather than for trial for " offences ". 26 An abuse of process arises where arguments or contentions should have been raised in earlier proceedings: eg, Rivera v Minister Administering the Extradition Act 1988 (Cth) [2007] FCAFC 191 , 164 FCR 116 , particularly at [14] [18] per Rares J. As His Honour Justice Handley put it, writing extra-judicially, "[i] n the language of the stud book, one might say that Anshun was by abuse of process out of Henderson v Henderson": Anshun Today , (1997) 71 ALJ 934. 36 However that argument may be resolved in relation to that form of relief, the Respondent Minister does not dispute (at least for present purposes) the jurisdiction of this Court to review -- for example -- whether a person is an " extraditable person " within the meaning of s 6 of the Extradition Act 1988 (Cth) and a person who may be the subject of a notice issued under s 16 of that Act. It would not be necessary to trespass into the question as to the validity of an " extradition request " where such a request did not seek the extradition of a person for an " extradition offence " or where there was manifestly no warrant " for the arrest of a person in relation to an offence "; judicial review could be sought in respect to any subsequent decision or threatened decision which sought to give effect to such a request. 37 The force of the present submission advanced by the Minister, and the comparative weakness of the position of Mr Tervonen, is that such judicial review as is now sought attempts to isolate out and review, as a discrete step in the extradition process, the making of the request -- a step which precedes any decision or conduct which is authorised by the 1988 Act. No provision of the Extradition Act authorises the making of a request by a foreign country; the Act simply contemplates what is to happen when such a request is made by an " extradition country ". 38 It is presumably for this reason that the present Amended Application seeks not only declaratory relief in respect to the request, but also a " writ of prohibition " prohibiting any effect being given to the request as made by Finland. And it is presumably for the same reason that no reliance has been placed by Mr Tervonen upon the Administrative Decisions (Judicial Review) Act 1977 (Cth). At a point of time when all that has occurred is the making of a request, there is certainly no decision " under an enactment " as required by the 1977 Act. In some circumstances, relief in the nature of prohibition against an " officer of the Commonwealth " may, however, be appropriate pursuant to s 39B(1) of the Judiciary Act 1903 (Cth).


case_title: SZBJM v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 404


case_title: Taylor v Ansett Transport Industries Ltd (1987) 18 FCR 342


case_title: Tervonen v Finland [2008] FCA 781

case_text: This was an argument which, it would appear, held some favour with His Honour Justice Gyles in Tervonen v Finland [2008] FCA 781. His Honour there observed: Warrant for arrest? [8] Tervonen puts authentication of the warrants in issue but also takes a point of substance. He contends (and contended before the Magistrate) that five of the eight warrants are for his arrest for pre-trial investigation purposes rather than for trial for the offences. He submits that there is a clear distinction in Finnish law between the two purposes. He submits that only a public prosecutor can bring a prosecution, the police powers being limited to the investigation stage. These submissions are not evidence, but have clearly flagged an issue. ... [20] It appears that Tervonen put a similar argument to Rares J in the proceeding challenging the validity of the s 16 notice -- see Tervonen [2007] FCA 1684 ; 98 ALD 589 at [33] [44]. Rares J decided that it was open to the Minister to form the relevant opinion but did not consider the correctness or otherwise of that opinion, the proceeding before him being a challenge on administrative law grounds. [21] In my opinion, it is tolerably clear in the present case that only the first three warrants would normally be regarded as being "for the arrest of the person for the offence", the other warrants being connected with coercive investigation. To borrow from Art 1 of the Treaty, it was only those warrants by which Tervonen had been charged by a competent authority with the relevant offences against the law of Finland, bearing in mind that an extradition treaty must be a treaty relating to the surrender of persons accused or convicted of offences (s 5). That conclusion is assisted by the failure of Finland to produce material to the Magistrate explaining the system as it applied to the issues in the case.


case_text: In addition to these proceedings, there was also a proceeding commenced by Mr Tervonen seeking to review the further notice issued in November 2007. That proceeding has since been resolved: Tervonen v Minister for Home Affairs [2008] FCA 872. 7 On 21 April 2008 the Respondent Minister filed a Notice of Motion seeking the dismissal of the current proceeding. It is variously contended by the Respondent Minister that the proceeding should be dismissed by reason of res judicata or issue estoppel, or that the proceeding is " barred by reason of the doctrine [of] Anshun estoppel " or should be dismissed pursuant to O 20 r 5 of the Federal Court Rules . Abuse of process is also relied upon by the Minister.


case_text: The first two notices have been the subject of a proceeding before a judge of this Court at first instance: Tervonen v Minister for Justice and Customs (No 2) [2007] FCA 1684 , 98 ALD 589. And there was then an appeal from that decision: Minister for Home Affairs v Tervonen [2008] FCAFC 24 , 166 FCR 91. An application for special leave to appeal was filed with the Sydney Registry of the High Court of Australia on 19 March 2008. 11 This was an argument which, it would appear, held some favour with His Honour Justice Gyles in Tervonen v Finland [2008] FCA 781. His Honour there observed: Warrant for arrest? [8] Tervonen puts authentication of the warrants in issue but also takes a point of substance. He contends (and contended before the Magistrate) that five of the eight warrants are for his arrest for pre-trial investigation purposes rather than for trial for the offences. He submits that there is a clear distinction in Finnish law between the two purposes. He submits that only a public prosecutor can bring a prosecution, the police powers being limited to the investigation stage. These submissions are not evidence, but have clearly flagged an issue. ... [20] It appears that Tervonen put a similar argument to Rares J in the proceeding challenging the validity of the s 16 notice -- see Tervonen [2007] FCA 1684 ; 98 ALD 589 at [33] [44]. Rares J decided that it was open to the Minister to form the relevant opinion but did not consider the correctness or otherwise of that opinion, the proceeding before him being a challenge on administrative law grounds. [21] In my opinion, it is tolerably clear in the present case that only the first three warrants would normally be regarded as being "for the arrest of the person for the offence", the other warrants being connected with coercive investigation. To borrow from Art 1 of the Treaty, it was only those warrants by which Tervonen had been charged by a competent authority with the relevant offences against the law of Finland, bearing in mind that an extradition treaty must be a treaty relating to the surrender of persons accused or convicted of offences (s 5). That conclusion is assisted by the failure of Finland to produce material to the Magistrate explaining the system as it applied to the issues in the case. 15 The Respondent Minister further contends, in the alternative, that the present argument has in any event been advanced by Mr Tervonen and also resolved against him by the decision at first instance in Tervonen v Minister for Justice and Customs (No 2) [2007] FCA 1684 , 98 ALD 589. In issue in that proceeding were the first two of the notices issued pursuant to s 16 of the 1988 Act. In the course of his reasoning His Honour there observed: Did the Finnish warrants satisfy the criteria in s 6(a)(i)? [33] Each of the Finnish warrants recited that Mr Tervonen was "suspected on probable cause" of one or more offences. Mr Tervonen argued that the language of the warrants did not meet the threshold set in s 6(a)(i) of being warrants which were in force for his arrest "in relation to an offence ... against the law of [Finland] that the person is accused of having committed". He argued that being suspected on probable cause was something less than being accused of having committed an offence. The argument so expressed is considered to be a different argument to that now sought to be advanced. His Honour thereafter continued: [37] Mr Tervonen argued that, on their face, none of the eight warrants amounted to an accusation that Mr Tervonen had actually committed an offence, or that he was "accused" of having done so within the meaning of s 6(a)(i). He said that a mere statement in the warrants that his arrest was claimed and that he was "suspected with probable cause of the following criminal acts" which were then set out was insufficient to satisfy s 6(a)(i). [38] In Director of Public Prosecutions (Cth) v Kainhofer [1995] HCA 35 ; (1995) 185 CLR 528 at 540; [1995] HCA 35 ; 132 ALR 483 at 490; [1995] HCA 35 Brennan CJ, Dawson and McHugh JJ left open the meaning to be attributed to the word "accused" in s 6(a)(i) of the Act, noting: It is sufficient to say that, in considering whether a person is an extraditable person under s 6(a)(i) of the Act, it is necessary to bear in mind the statutory object of enabling Australia to carry out its obligations under extradition treaties with countries that adopt a variety of criminal procedures different from our own. [39] The Attorney-General cannot be expected to be an expert in foreign law: Williams [v Minister for Justice and Customs [2007] FCAFC 33 , 157 FCR 286] at [49] . Minds may differ as to the proper construction of s 6(a)(i) and whether a particular warrant relied on by an extradition country falls within it (as the decision of the Full Court, which the High Court reversed in Kainhofer). For this reason s 16(2)(a)(i) is framed so that the Attorney-General must form the opinion that the person is an extraditable person. [40] Having regard to the terms of the warrants and other material before him, I am of opinion that it was open to Senator Ellison to form the opinion that they met the criterion in s 6(a)(i). Each warrant asserted that there was probable cause for suspecting that Mr Tervonen had committed an offence and that the court which issued the warrant considered he ought be arrested. [41] In the context of Australian law, a statement that a person has been arrested by the police and charged with an offence is capable of bearing a meaning that the police suspected him or her of having committed the offence and that the arresting officers had reasonable cause for doing so: Mirror Newspapers Ltd v Harrison [1982] HCA 50 ; (1982) 149 CLR 293 at 301; [1982] HCA 50 ; 42 ALR 487 at 493 per Mason J. That case dealt with defamatory meanings that might be conveyed to ordinary, reasonable Australians by a statement of a police arrest and charge. [42] Each warrant, on its face, was termed a "warrant". It was issued by a Finnish court for the arrest of Mr Tervonen who was stated to have been suspected on probable cause of having committed an offence. The minister could reasonably form the opinion that each document was a warrant, issued by a Finnish Court, in force, for the arrest of Mr Tervonen in relation to an offence against the law of Finland that he was accused of having committed within the meaning of s 6(a)(i). While other persons may not have formed the same view, having regard to the significant differences between the laws of other countries and Australia, to which Mason CJ, Dawson and McHugh JJ referred to in Kainhofer at CLR 540; ALR 490, I am of opinion that it was open to Senator Ellison to form the view that each of the warrants was one which met the description in s 6(a)(i). 20 To now permit Mr Tervonen to pursue his present arguments would certainly not promote finality in litigation and would now permit him to raise an argument which either has been raised and resolved or an argument which should have been raised before the trial judge in Tervonen v Minister for Justice and Customs (No 2) [2007] FCA 1684 , 98 ALD 589 and on appeal, if necessary, by way of a notice of contention. 24 It is considered that the argument now sought to be advanced by Mr Tervonen was, at the very least, " so relevant to the subject matter " of the proceeding being pursued before the trial judge in Tervonen v Minister for Justice and Customs (No 2) [2007] FCA 1684 , 98 ALD 589 that it was " unreasonable " for him not to have relied upon it in that proceeding. Not only were the terms of s 6(a)(i) the very subject matter of consideration by His Honour, the terms of the Treaty were also the subject matter of consideration. His Honour thus summarised one of the arguments being advanced before him for resolution as follows: [4] Mr Tervonen has challenged the validity of each s 16 notice. He argued that Senator Ellison's s 16 notice was invalid because: ... (3) Article 7(2) of the Treaty Between Australia and Finland Concerning Extradition done at Helsinki on 7 June 1984 as amended by Art 3 of the Protocol Between Australia and Finland Amending the Treaty Concerning Extradition done at Helsinki on 10 September 1985 contained in Sch 2 to the Extradition (Finland) Regulations 1988 (Cth) required Finland to accompany its request for his extradition with a statement of each offence for which extradition was sought together with a statement of the acts or omissions which were alleged against Mr Tervonen in respect of each offence. Mr Tervonen argued that because in August 2006 Senator Ellison personally did not have before him all of this material, as required by the treaty, he could not issue the notice. Whether or not the warrants were for " offences ", the meaning of s 6(a)(i) was an issue under consideration, as were the terms of the Treaty. A matter centrally relevant to the " opinion " of the Minister when giving a notice under s 16 is the " opinion " as to whether a person is an " extraditable person " within the meaning of s 6. Any argument that a person is not an " extraditable person ", because there is no warrant for his arrest for an " offence ", is an argument which should have been raised -- if it was to be raised at all -- when the Minister's decisions under s 16 were under scrutiny by this Court either at first instance or on appeal. It is an argument which should have been advanced as a reason why the Minister could not have lawfully reached the " opinion " required.


case_text: A superior Court will not allow its processes to be used as an " instrument of injustice or unfairness ": Walton v Gardiner [1992] HCA 12 , 177 CLR 378. Mason CJ, Deane and Dawson JJ there summarised the position as follows (at 392 3): The inherent jurisdiction of a superior Court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness. Thus, it has long been established that, regardless of the propriety of the purpose of the person responsible for their institution and maintenance, proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail. Again, proceedings within the jurisdiction of a court will be unjustifiably oppressive and vexatious of an objecting defendant, and will constitute an abuse of process, if that court is, in all the circumstances of the particular case, a clearly inappropriate forum to entertain them. Yet again, proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings. ... (citations omitted)


case_title: Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 242 , 146 FCR 10

case_text: In England it has been suggested that Anshun estoppel does not apply to judicial review proceedings: R v Secretary of State for the Environment; Ex parte Hackney London Borough Council [1984] 1 All ER 358, [1984] 1 All ER 956. But that is not the position in Australia and an Anshun estoppel may be invoked in a proceeding such as the present: Taylor v Ansett Transport Industries Ltd (1987) 18 FCR 342 ; Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 242 at [39] , [2004] FCA 51 ; 146 FCR 10 at 18; Australian Education Union v Lawler [2008] FCAFC 135 at [177] per Jessup J (Moore and Lander JJ agreeing); SZBJM v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 404 at [15] [18] per Madgwick J. See also: Campbell E, Relitigation in Government Cases: A Study of the Use of Estoppel Principles in Public Law Litigation (1994) 20 Mon Univ L Rev 21. 31 In Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 242 at [38] [39], [2004] FCA 51 ; 146 FCR 10 at 17 18 Emmett, Conti and Selway JJ noted that Anshun estoppel has been applied to proceedings in the nature of review of administrative action " insofar as Anshun estoppel is aimed at avoiding abuse of process ". Their Honours further observed, however, that " there will be instances where, even though there is every reason why the matter should have been raised earlier but was not, there are special circumstances that prevail to permit a party to raise the issue in a subsequent proceeding ": at [38]. Where the beneficiary of an Anshun estoppel, their Honours observed, " is a Minister of State, who has no personal interest in the outcome of a proceeding, such a principle may be of only secondary significance ": at [39].


case_text: Those findings were open on the evidence and are consistent with authority concerning the scope of the term 'scheme' ( Federal Commissioner of Taxation v Spotless Services Ltd [1996] HCA 34 ; (1996) 186 CLR 404 at 425, McHugh J; Federal Commissioner of Taxation v Peabody [1994] HCA 43 ; (1994) 181 CLR 359 at 383, Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ; Federal Commissioner of Taxation v Hart [2004] HCA 26 ; (2004) 217 CLR 216 at 225, Gleason CJ and McHugh J [9], Gummow and Hayne JJ, 236 [43], Callinan J, 250 [85]). 63 The Tribunal identified that question as one of whether 'a reasonable person' would conclude that each taxpayer in entering into and carrying out the particular scheme had, as his or her 'most influential and prevailing or ruling purpose and thus [his or her] dominant purpose, the obtaining thereby of a tax benefit, in the statutory sense' ( Federal Commissioner of Taxation v Spotless Services Ltd (supra) at 423, per the Court (supra)). 64 In considering each of the eight factors so as to determine whether a reasonable person would conclude that each taxpayer acted according to the most influential, prevailing or ruling purpose in the sense required by s 177D, the Tribunal was influenced by these findings in relation to the eight factors. 65 As to factor (i) (see [57] of these reasons in each case), the applicants did not so much enter into a series of transactions as acquire a packaged solution from their solicitors. The instructions required that each applicant execute a series of pro-forma documents over the course of a number of days [54].


case_text: Those findings were open on the evidence and are consistent with authority concerning the scope of the term 'scheme' ( Federal Commissioner of Taxation v Spotless Services Ltd [1996] HCA 34 ; (1996) 186 CLR 404 at 425, McHugh J; Federal Commissioner of Taxation v Peabody [1994] HCA 43 ; (1994) 181 CLR 359 at 383, Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ; Federal Commissioner of Taxation v Hart [2004] HCA 26 ; (2004) 217 CLR 216 at 225, Gleason CJ and McHugh J [9], Gummow and Hayne JJ, 236 [43], Callinan J, 250 [85]).


case_text: Those findings were open on the evidence and are consistent with authority concerning the scope of the term 'scheme' ( Federal Commissioner of Taxation v Spotless Services Ltd [1996] HCA 34 ; (1996) 186 CLR 404 at 425, McHugh J; Federal Commissioner of Taxation v Peabody [1994] HCA 43 ; (1994) 181 CLR 359 at 383, Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ; Federal Commissioner of Taxation v Hart [2004] HCA 26 ; (2004) 217 CLR 216 at 225, Gleason CJ and McHugh J [9], Gummow and Hayne JJ, 236 [43], Callinan J, 250 [85]). 76 Accordingly, having regard to the eight factors and the alternative postulate ( Federal Commissioner of Taxation v Hart (supra) at 243, Gummow and Hayne JJ [66]) open on the evidence, the Tribunal concluded as was open to it, that the dominant purpose of entering into and carrying out the scheme was to obtain a tax benefit of non-inclusion of the amount of a capital gain in the assessable income of each taxpayer that would have been realised upon disposal, as contemplated by s 177C(1)(a). 77 Each taxpayer says that no tax benefit arose in connection with the scheme and thus s 177D(a) is not satisfied with the result that Part IVA does not apply to the sequence of transactions found to be a scheme. In other words, s 177D falls at the threshold and Part IVA has no application to the sequence of transactions. That result is said to arise because the statutory definition of a tax benefit contained in s 177C(1)(a) is subject to an express exclusion which removes the non-inclusion of a postulated capital gain from the assessable income of a taxpayer where the non-inclusion is attributable to the making of a choice or election expressly provided for by the 1997 Act (or the 1936 Act). 78 The relevant provisions are these. SECTION 177C TAX BENEFIT 177C(1) [Obtaining a tax benefit] Subject to this section, a reference in this Part to the obtaining by the taxpayer of a tax benefit in connection with a scheme shall be read as a reference to: (a) an amount not being included in the assessable income of the taxpayer of a year of income where that amount would have been included, or might reasonably be expected to have been included, in the assessable income of the taxpayer of that year of income if the scheme had not been entered into or carried out; or (b) ... and, for the purposes of this Part, the amount of the tax benefit shall be taken to be: (c) in the case to which paragraph (a) applies the amount referred to in that paragraph; and ... 177C(2) [Exclusions] A reference in this Part to the obtaining by the taxpayer of a tax benefit in connection with a scheme shall be read as not including a reference to: (a) the assessable income of the taxpayer of a year of income not including an amount that would have been included, or might reasonably be expected to have been included, in the assessable income of the taxpayer of that year of income if the scheme had not been entered into or carried out where: (i) the non-inclusion of the amount in the assessable income of the taxpayer is attributable to the making of an agreement, choice, declaration, election or selection, the giving of a notice or the exercise of an option (expressly provided for by this Act or the Income Tax Assessment Act 1997 ) by any person, except one under subdivision 126-B, 170-B or 960-D of the Income Tax Assessment Act 1997 ; and (ii) the scheme was not entered into or carried out by any person for the purpose of creating any circumstance or state of affairs the existence of which is necessary to enable the declaration, agreement, election, selection, choice, notice or option to be made, given or exercised, as the case may be.


case_text: as Heydon JA noted even in personal injury litigation 'the ambush theory of life has been abandoned' (53 NSWLR at 128 [30]); see too Snowy Mountains Organic Dairy Products Pty Ltd v Wholefoods Pty Ltd [2006] FCA 1361 at [15] per myself; Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd [2008] NSWCA 243 at [160] [162] per Allsop P, with whom Beazley and Campbell JJA agreed.


case_text: I see it, each of the parties bears some responsibility for their joint failure to bring forward the true issue between them that required prompt identification and resolution. I pointed out during the course of argument that in commercial litigation of this character and, as indeed in other litigation in today's society, that approach is unacceptable for the reasons given by Allsop J in White v Overland [2001] FCA 1333 at [4] which were applied by Heydon JA with the endorsement of Mason P and Young CJ in Eq in Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346 ; (2001) 53 NSWLR 116 at 128 129 [28] [32] and by a Full Court of this Court in Maniotis v JH Lever & Co Pty Ltd [2006] FCAFC 7 at [72] per Finn, Emmett and Bennett JJ. In the last case, the Court said: "In the efficient and proper conduct of civil litigation, even civil litigation hard fought between parties, it should always be recognised that, in the propounding of issues for trial, the parties should take steps to ensure that all relevant parties to the dispute are cognisant of what the issues are. Quietly leaving footprints in correspondence or directions hearings to be uncovered some time later in an attempt to reveal that a matter was always in issue is a practice that must be firmly discouraged. Where it is evident, or indeed suspected, that the other side is proceeding on the basis of a misconception or has not appreciated something, common sense will, as a general rule, mandate that a party ensure that the other is not proceeding on a misconception or that the other does appreciate something that has been said. No one's interests are advanced by litigation proceeding on assumptions which are seen or suspected to be false. The only consequence of keeping issues hidden or not clearly identifying them is to disrupt the business of the court leading to the waste of valuable public resources and to lead to the incurring of unnecessary costs by the parties, costs which ultimately have to be borne by someone: see White v Overland [2001] FCA 1333 at [4] ."


case_text: might have been expected, the bill of lading contains a " Himalaya " clause in the widest terms which is usual in such transactions. In Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52 ; (2004) 219 CLR 165 at 193 [79] , Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ noted that courts have been ready to conclude in cases of a stevedore seeking the benefit of a Himalaya clause that the carrier was acting with the stevedore's authority. They referred to the judgment of Barwick CJ in Port Jackson Stevedoring Pty Limited v Salmond & Spraggon (Australia) Pty Limited [1978] HCA 8 ; (1978) 139 CLR 231 at 241. His judgment was expressly approved in the last appeal to the Privy Council from the High Court of Australia: Port Jackson Stevedoring Pty Limited v Salmond & Spraggon (Australia) Pty Limited (" The New York Star ") (1980) 144 CLR 300 at 305. As Lord Wilberforce, delivering the judgment of a powerful board, said in The New York Star 144 CLR at 304, the significance of the majority decision of the Privy Council in New Zealand Shipping Co Limited v Satterthwaite & Co Limited [1974] UKPC 1 ; [1975] AC 154 was: "...not so much in the establishment of any new legal principle, as in the finding that in the normal situation involving the employment of stevedores by carriers, accepted principles enable and require the stevedore to enjoy the benefit of contractual provisions in the bill of lading."


case_title: Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346 ; (2001) 53 NSWLR 116


case_title: Port Jackson Stevedoring Pty Limited v Salmond & Spraggon (Australia) Pty Limited [1978] HCA 8 ; (1978) 139 CLR 231


case_title: Port Jackson Stevedoring Pty Limited v Salmond & Spraggon (Australia) Pty Limited (" The New York Star ") (1980) 144 CLR 300


case_title: Snowy Mountains Organic Dairy Products Pty Ltd v Wholefoods Pty Ltd [2006] FCA 1361


case_title: Toll (FGCT) Pty Ltd v Alphapharm Pty Limited [2004] HCA 52 ; (2004) 219 CLR 165


case_title: White v Overland [2001] FCA 1333


case_text: Allegations of bias impact on the integrity of the Tribunal, and should be carefully and fully considered. Undoubtedly an adjournment would have been necessary if the evidence was accepted. However, while the Federal Magistrates Court has an exceptionally busy case load, there was no indication by his Honour of case management issues impacting on the exercise of his discretion: see, eg, Black Decker (Australasia) Pty Ltd v GMCA Pty Ltd [2007] FCA 1623. There was no suggestion that if an adjournment were granted the first respondent would be prejudiced in the conventional way other than as to costs, although there is a public interest in hearing refugee matters expeditiously: see Sali v SPC Ltd [1993] HCA 47 ; (1993) 116 ALR 625 , 628-29; Bloch v Bloch [1981] HCA 56 ; (1981) 180 CLR 390 , 395-96; and SZKMS v Minister for Immigration and Multicultural Affairs (2008) FCA 499 at [29] .


case_text: In my view, there is nothing in the wording or ambit of s 425 of the Act that imposes procedural requirements on a tribunal at the hearing of the character now sought to be imposed by the appellant: see, eg, De Silva v Minister for Immigration and Multicultural Affairs [2000] FCA 765 ; (2000) 98 FCR 364 , 367-68 at [9] and Minister for Immigration and Multicultural Affairs v SZFDE [2006] FCAFC 142 ; (2006) 154 FCR 365 , 416-17 at [211].


case_text: In the notice of appeal filed on 9 September 2008, the appellant contended that his Honour erred by: • holding that the decision of the Third Tribunal was not affected by jurisdictional error; • failing to hold that the appellant was not provided with a real opportunity to give evidence and present arguments at the hearing before the Third Tribunal on 2 November 2007 contrary to s 425 of the Act; • refusing to receive oral evidence at the hearing below from Ms Peterson concerning the physical actions of the Third Tribunal Member at the hearing, which evidence would have been relevant to the issues before the Court and in circumstances where the absence if such evidence formed a basis for his Honour's dismissal of the application; • failing to find that the Third Tribunal's decision was affected by apprehended bias; and • failing to find that the Third Tribunal's approach to issues of credibility involved jurisdictional error. The Third Tribunal, by adopting a procedure based on the assumption that the purpose of the hearing was to discover whether the applicant was a truthful person, breached s 425 of the Act and failed to exercise jurisdiction to determine the claims before it. In this regard, it was contended that his Honour failed to apply the reasoning of this Court in Kopalapillai v Minister for Immigration [1998] FCA 1126 ; (1998) 86 FCR 547 at 555. 17 In written submissions filed on behalf of the appellant, contentions were made in support of the grounds in the notice of appeal, as well as leave being sought to raise a new ground of appeal. 18 In light of those contentions, it is necessary to say something more of the previous history of the delegate's decision and the three Tribunal hearings. 74 Finally, the appellant claims that the Federal Magistrate erred by failing to find that the Tribunal's approach to issues of credibility involved jurisdictional error (see Kopalapillai [1998] FCA 1126 ; 86 FCR 547 at 555). 75 The Federal Magistrate rejected the submission that, by entirely focusing on the appellant's credibility, the Tribunal fell into jurisdictional error. 76 His Honour correctly noted that, at the end of the Third Tribunal hearing (which is not recorded in the transcript), the Member identified that the assessment of the appellant's status turned on the appellant's credibility. 77 In Kopalapillai [1998] FCA 1126 ; 86 FCR 547 at 555, the Full Court of this Court (O'Connor, Branson and Marshall JJ) said: Were we satisfied that the RRT had reached its decision in this case by adopting a procedure which placed on the appellant an onus of establishing that he was truthful, or even a procedure based on the assumption that the purpose of the hearing before it was to discover whether the appellant was a truthful person, we would be satisfied that the procedures adopted by the RRT contravened s 420 of the Act. 78 I do not regard his Honour's approach to be at odds with the approach taken by the Full Court in Kopalapillai [1998] FCA 1126 ; 86 FCR 547. All the Tribunal was doing, at the end of the hearing, was stressing the important issue of credibility. It was not elevating such an issue to that hypothesised in Kopalapillai . I agree with the approach taken by the Federal Magistrate. 79 The appeal should be allowed. 80 The matter should be remitted to a differently constituted Federal Magistrates Court for a re-hearing and reconsideration only of the issue of bias taking into account any admissible evidence of Ms Peterson adduced by the appellant. I certify that the preceding eighty (80) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Middleton. Associate: Dated: 10 December 2008 Counsel for the Appellant: Mr S E J Prince Counsel for the Respondents: Mr T Reilly Solicitor for the Respondents: Australian Government Solicitor Date of Hearing: 19 November 2008 Date of Judgment: 10 December 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1866.html


case_title: Minister for Immigration and Multicultural Affairs v SZFDE [2006] FCAFC 142 ; (2006) 154 FCR 365


case_text: Whilst it is important to put the exercise of a discretion in the context of a legally unrepresented litigant, where greater flexibility in the failure to adhere to court orders may be called for (see Platcher v Joseph [2004] FCAFC 68) , I accept that the rules must be obeyed, and one must be careful not to regard a litigant in person as having a special status: see Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85 ; (1999) 84 FCR 438 , 446. I also accept that there is a great reluctance to interfere with procedural orders, particularly as to adjournments. However, the Federal Magistrate had a discretion to exercise in rejecting the evidence being sought to be introduced contrary to a court direction, and in my view, failed to take into account the significance of the evidence, the lack of demonstrated prejudice to the first respondent, and the lack of any other compelling reason to reject the evidence completely.


case_title: Platcher v Joseph [2004] FCAFC 68


case_text: His Honour could not find any indication that the Third Tribunal's decision was affected by an apprehension of bias against the appellant. His Honour noted that the test for apprehended bias, as set out by the High Court in Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 ; (2001) 179 ALR 425 , was 'whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided' (at [27]), and suggested that, in view of its administrative and inquisitorial nature, the test might be formulated 'by reference to a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias' (at [28]). 12 His Honour had the advantage of listening to the sound recording of the Third Tribunal hearing conducted by Mr Short, and specifically addressed the appellant's written submissions, in which the appellant alleged that: (i) Mr Short "came to the hearing with a closed mind" because "he was only interested in determining that I was not a credible witness". (ii) Throughout the hearing Mr Short "had extremely long pauses", which "only added to my nervousness". (iii) Mr Short was "very aggressive" in exchanges with Ms Stotz at one point of the hearing concerning the [appellant's] evidence given at earlier hearings about the official position he held in the Awami League. He spoke to Ms Stotz "in a very rude, dismissive voice". He "became distracted by his dislike of Ms Stotz, rather than focusing on my case itself". The [appellant] was ignored, when Mr Short "shouted" at Ms Stotz and criticised her preparation for the hearing. (iv) At a later point, Mr Short "shouted" at the [appellant] when drawing his attention to a document to which he referred. (v) A lay person would have felt that Mr Short's questioning of the [appellant] about the [appellant's] knowledge of the Awami League's official objectives and its flag was "unfair and intimidatory" because "the Member would have known that I only participated in Awami League politics at a village level". (vi) At a later point, Mr Short again "began berating my representative", and asked her questions "in a very menacing tone of voice". (vii) ... "[Mr Short] left his chair and proceeded towards Ms Stotz, shaking his forefinger at her. It appeared that he was going to strike her. My witnesses and I were very worried and frightened". (viii) Mr Short listened to the applicant's two witnesses "but did not ask questions of them", so that "it appeared that he was not really interested in what they had to say, or how their evidence was significant to my case". (ix) The [Third] Tribunal did not take into account that the [appellant] came from a different social and cultural environment and might experience bewilderment and anxiety. Nor did it take into account that the [appellant's] educational, social and cultural background might affect the manner in which he provided his evidence. 13 His Honour noted that while the Third Tribunal arrived at an adverse conclusion on credibility in its ultimate decision, with reference to logical and supported reasons which had previously been put to the appellant, this did not suggest that there was any predetermination of that outcome. The Federal Magistrate could not find anything in Mr Short's questioning of the appellant at the hearing, nor in the subsequent s 424A invitation for comments, nor in his ultimate statement of reasons, which indicated that he prematurely closed his mind to a proper assessment of the appellant's refugee claims. Accordingly, his Honour did not consider that a fair-minded lay observer might have formed any reasonable apprehension about this, taking into account the Tribunal's usual inquisitorial procedures which were referred to by the High Court in Ex parte H [2001] HCA 28 ; 179 ALR 425. 14 Further, his Honour did not accept that there was any behaviour by Mr Short towards Ms Stotz in the course of this exchange which should be characterised as 'very aggressive', nor as unreasonably 'rude' or 'dismissive'. Further, his Honour did not accept that Mr Short's concern about Ms Stotz's competence as a migration agent became a distraction to Mr Short at this point, or any other point, such that it prevented him from properly conducting the hearing. 15 In relation to the appellant's submission that '[Mr Short] left his chair and proceeded towards Ms Stotz, shaking his forefinger at her. It appeared that he was going to strike her. My witnesses and I were very worried and frightened', his Honour noted that there was no evidence before the court to support this accusation. His Honour held that as the accusation was not foreshadowed prior to the hearing, and the respondents were unable to respond to it without adequate prior notification. His Honour refused to allow evidence from a Ms Peterson to be adduced in support of that submission.


case_text: A general admonition that the truthfulness of the appellant's account is in question is not sufficient to discharge the obligation under s 425 to identify particular issues in circumstances where there would a departure from accepted findings by the Delegate in favour of the appellant: see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 231 ALR 592 , 600-602 at [34]-[44]. 42 The obligation is to give the appellant an opportunity to give evidence or make submissions on a determinative issue. 43 However, as the High Court said in SZBEL [2006] HCA 63 ; 231 ALR 592 , 602 at [47]: First, there may well be cases, perhaps many cases, where either the delegate's decision, or the tribunal's statements or questions during a hearing, sufficiently indicate to an applicant that everything he or she says in support of the application is in issue. That indication may be given in many ways. It is not necessary (and often would be inappropriate) for the tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the tribunal is not, and is not to adopt the position of, a contradictor. But where, as here, there are specific aspects of an applicant's account, that the tribunal considers may be important to the decision and may be open to doubt, the tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted. 44 This is one of those cases alluded to by the High Court. 45 The Third Tribunal stated that it did raise the question of his membership of AL as an issue. It said: I foreshadowed that I would be writing to the applicant in accordance with section 424A of the Act. The applicant's representative asked if I accepted that the applicant was a member of Awami League. I noted that this was clearly an issue in the review. The applicant's representative referred to Ms Petersen's evidence and stressed that the applicant had only been involved at the village level. She submitted that although his title had been 'Publicity Secretary' his role had not been that of a Publicity Secretary in Australia. I noted that the applicant's role as Publications Secretary had been discussed at the previous hearings and that at the hearing before the second Tribunal in October 2006 he had said that he had spoken at meetings so many times that he could not remember. The applicant said that as Publications Secretary he had organised meetings. He said that when he had referred to speaking at meetings he had meant that he had been the MC at meetings.


case_text: Therefore, whether or not the appellant was put on notice by the Second Tribunal decision or not (see SZEUI v Minister for Immigration and Citizenship [2008] FCA 1338) , the Third Tribunal certainly did raise in a timely and appropriate way the issue of his membership of AL. 49 Accordingly, the Third Tribunal did not fail to comply with s 425 of the Act in this respect. 50 As to the other basis for breach of s 425 of the Act, I do not consider the Federal Magistrate fell into error.


case_text: The appellant was questioned about matters going to the extent of his involvement in the AL, the sophistication of his knowledge about the AL's stated policy platforms, and the nature of the electoral system in Bangladesh: SZITH v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FMCA 1162 at [29] and [60]. All of those matters clearly related to the issues that had arisen from the delegate's decision (and, in the First Tribunal hearing) about the level of his political profile. 27 The questions did not raise, nor challenge, as an issue his claimed membership of the AL over many years, or his desire to continue to be a member of the AL upon his return to Bangladesh. 28 On 9 November 2006, the Second Tribunal affirmed the decision of the Delegate of the Minister. 33 In the judicial review proceedings from the Second Tribunal, Driver FM found (in SZITH [2007] FMCA 1162) at [60] - [62] : 60. The real issue, however, is whether the [appellant] was given an opportunity to deal with the issue of whether he was a member of the Awami League as he had claimed. He was clearly on notice from the decisions of the delegate and the first Tribunal that the issue of the particular offices that he held, and the degree and duration of his involvement in the Party, were live issues. Both the delegate and the first Tribunal had, however, accepted that the [appellant] was a member of the Awami League as he had claimed. The presiding member, at the hearing conducted by the second Tribunal, did say that he would be "undertaking a completely new examination of [the] application". It is also true that at the hearing conducted by the second Tribunal the [appellant] was questioned at length about his asserted activities as a member of the Awami League. At no stage, however, was the appellant put on notice that his very Party membership, which had previously been accepted, was in issue. 61. Neither did the letter sent to the [appellant] pursuant to s 424A of the Migration Act , put the [appellant] on notice that his membership of the Awami League was in issue. Rather, it would have had the reverse effect. The "information" relied upon by the Tribunal to find that the [appellant] was not a member of the Awami League was disclosed in that letter on the basis that the information might indicate "that your claims to have been an active campaigner on behalf of the Awami League in the 2001 election were not accurate". Thus, the [appellant] was given to understand that his inability to name his local Parliamentary constituency accurately might be used for a limited adverse purpose, whereas it was ultimately used for a much more fundamental adverse purpose. 62. It follows, and I find, that the Tribunal fell into the same jurisdictional error as was identified by the High Court in SZBEL. In order for the [appellant] to be given an effective hearing opportunity pursuant to s.425 , he needed to be able to deal with the proposition, not only that he did not hold the offices in the Party that he claimed and was not actively involved as he claimed but also that he was never a member of the Awami League at all as he had claimed. The second Tribunal made a far more fundamental adverse credibility finding against the appellant than had the first Tribunal and the delegate. The second Tribunal needed to put the appellant on notice that that more fundamental adverse credibility finding was in prospect in order for the hearing opportunity afforded the [appellant] to be a real one. 34 A similar argument is now sought to be raised in relation to the process undertaken by the Third Tribunal. Although the application before the Federal Magistrate claimed that a breach of s 425 occurred, this focused only on the failure to provide the appellant with an opportunity during the hearing to listen to parts of the tapes of the previous hearings concerning the particular issues which the appellant was being questioned in the Third Tribunal hearing. 35 Leave is now sought to have this Court consider the additional aspect of breach of s 425 of the Act as found by Driver FM in the Second Tribunal hearing. 40 I accept that there was no identification of this issue in any of the invitations to hearing issued to the appellant following the remittal by the Federal Magistrate's Court. Again, the s 424A letter which was issued after the hearing suffered from the same deficiencies identified by Driver FM in SZITH FMCA 1162 at [61], in that it did not specifically identify the mere membership of AL as a separate issue.


case_title: SZKMS v Minister for Immigration and Multicultural Affairs (2008) FCA 499