case_text: delisting now will not occur until either 1 November 2006 or 1 May 2007 according to the letter from the ASX dated 28 April 2006. Whether to comply or not with the listing rules seems to me, in the circumstances of this case, a matter for LND and its directors. As matters now stand, DPE and LAM have the ability to sell their shares whilst LND is still listed. I will therefore not impose a sale as this would not be appropriate. As to the other remedies sought, I consider there to be no warrant for such an intrusion into the affairs of LND: see, generally, Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (No 2) (1998) 28 ACSR 688 and Martin v Australian Squash Club Pty Ltd (1996) 14 ACLC 452, 475.


case_outcome: considered

case_text: question of whether the directors of LND put the plaintiffs in a position where the only possible remedy was litigation, to use the arguendo comments of Kitto J in M Dalley & Co Pty Ltd v Sims [1968] HCA 82 ; (1968) 120 CLR 603 at 606, will depend upon the view I take as to the merits of the plaintiffs' case prior to the litigation commencing. If the plaintiffs do not have a basis for claiming relief in these proceedings then I do not see how the observations of Kitto J - which are said, in any event, in a different context - can be of much assistance to the plaintiffs. The main issue comes down to whether the actions of the directors on 22 June 2006 and 23 June 2006 were such as to constitute conduct which was contrary to the interests of the members as a whole, or oppressive to, unfairly prejudicial to or unfairly discriminatory against, a member or members, whether in that capacity or in any other capacity. Taking into account the history of LND as detailed above, the fact that the market in its shares is illiquid, even whilst listed, and the decisions made by the directors as to the express concerns of the plaintiffs, it is difficult to see any unfairness to the plaintiffs.


case_outcome: cited

case_title: Martin v Australian Squash Club Pty Ltd (1996) 14 ACLC 452, 475


case_text: circumstances are not too dissimilar to certain aspects of the case before Crockett J in Re G Jeffrey (Mens Store) Pty Ltd and G Jeffrey Pty Ltd (1984) 9 ACLR 193. Of course, each case must be looked at on the basis of its own facts and circumstances. It is significant that ASX itself is taking the initiative to delist LND. Having regard to the nature of the listing rules, it seems to me to be up to LND itself to make a decision whether to comply or not. It seems that to comply would involve a change in direction for LND which the directors themselves consider to be commercially inappropriate. As far as the evidence shows, the investment strategy and approach of the directors has been very successful. It was said on behalf of the plaintiffs that, prior to delisting, some opportunity should have been given to the plaintiffs to sell their shares in the market. I am looking at the position prior to the institution of proceedings unaffected by the decision made by LND on 28 July 2006, and recalling that it is not suggested that the resolution of LND on 22 June 2006 and announcement on 23 June 2006 were made in bad faith or for an improper purpose. In not giving some further opportunity to sell, I am not satisfied that there is any element of unfairness, commercial or otherwise, having regard to the particular circumstances of LND and the current market. Delisting seems inevitable if ASX persists with its current attitude. Further, I am not satisfied on the evidence that the immediate delisting without giving LAM or DPE an opportunity to sell their shares would have made any substantial difference to those companies in disposing of their shares in a sufficient quantity and at an appropriate price. I will accept that there may be a value to be attached to the listed shares over and above unlisted shares, however the evidence is a little unsatisfactory in that regard.


case_outcome: followed

case_title: Re Spargos Mining NL (1990) 3 WAR 166

case_text: it is not necessary that the conduct of which the plaintiffs complain be continuing at the time of the application or at the time when the court comes to consider the matter. However, that question may well be relevant as to whether relief is granted at all or what is the appropriate relief: Re Spargos Mining NL (1990) 3 WAR 166. One must look to all the circumstances, including the timing of the actions of the defendants, to ascertain whether particular conduct is within the terms of ss 232(d) or (e). One event or one act in itself may not constitute an act which will provide the basis for the court to conclude that the conduct is within these provisions. However a number of events or acts, when viewed cumulatively, may well provide such a basis. The main complaint in this case is that the defendants unfairly took action to put a restriction upon the plaintiffs' ability to sell their shares through the taking of a positive action to delist LND. The restriction was not so much one which realistically imposed any greater restraint upon the volume of shares that could be sold, but it was said that it did impact upon the price that could be achieved. The evidence seems clear that, whether listed or not, the plaintiffs would have difficulty in selling their shares, even if they were so minded to sell. There was evidence of a recent sale of some 680 of DPE's shares for the price of $46 each which seemed to be above the 'fair value' attributed by the directors of LND. In addition to this positive action to delist, the plaintiffs call in aid a number of other factors which indicate the unfair dealing, such as the failure to respond to requests addressing their concerns and other correspondence, compelling the institution of these proceedings and failing to notify in a timely matter various matters affecting LND.


case_text: Shelton v National Roads & Motorists Association Ltd (2004) 51 ACSR 278 ( 'Shelton' ), Tamberlin J agreed with the conclusions reached by Campbell J in Turnbull in respect of the proper construction of ss 232(d) and (e) of the Act. Also in Shelton , when speaking particularly of s 232(e) of the Act, Tamberlin J said, amongst other things at [23], that: It is not practicable to delineate the numerous ways in which oppressive conduct may be established. The Court will generally look at the overall course of conduct and consider whether it is so unfair that reasonable directors would not consider it fair. If directors exercise a power so as to impose a disability or burden on a member that is unfair according to ordinary standards of reasonableness and fair dealing, then such conduct may be described as oppressive...The test of unfairness is objective: see Wayde v NSW Rugby League Ltd [1985] HCA 68 ; (1985) 180 CLR 459 at 472 per Brennan J; Morgan v 45 Flers Avenue Pty Ltd (1987) 11 NSWLR 573. The Court should not take a narrow approach to cases of oppression. It is necessary for the Court to come to a conclusion that there has been conduct unfairly prejudicial to or unfairly discriminatory or oppressive to a member before it makes an order to this effect: see John J Starr (Real Estate) Pty Ltd v Andrew (Australasia) Pty Ltd (1991) 6 ACSR 63. His Honour then went on to say, at [24]: The onus of establishing unfairness rests on the applicant asserting the conduct that is contrary to the interests of the members as a whole, or that is oppressive, unfairly prejudicial or discriminatory. An applicant must actually prove oppression before obtaining relief. It is not established simply by showing that the majority are in control of the company, or that the applicant is consistently out-voted, or that the majority have made some questionable decisions from a business point of view. The mere disadvantage of being in a minority does not in itself constitute oppression. It is necessary for each single allegation in an oppression case to be pleaded clearly in order to assess whether the totality may amount to oppression: see Weatherall v Satellite Receiving Systems (Australia) Pty Ltd (1999) 92 FCR 873. Disagreement with a decision by a majority of shareholders and directors on the part of a minority shareholder does not entitle that shareholder to relief under the section: Re Bountiful Pty Ltd (1994) 12 ACLC 902.


case_outcome: discussed

case_text: is not necessary to prove lack of probity or want of good faith: see, e.g. Thomas v HW Thomas Ltd [1984] 1 NZLR 686 in relation to analogous provisions of the Companies Act 1955 (NZ). In that case, Richardson J reminded us, at 694: Where the member is adversely affected in that sense, the determination as to whether it is unjustly so within subs(1), calling for the granting of relief under subs(2), must turn on an overall assessment of the position in the company. Fairness cannot be assessed in a vacuum or simply from one member's point of view. It will often depend on weighing conflicting interests of different groups within the company. It is a matter of balancing all the interests involved in terms of the policies underlying the companies legislation in general and s 209, in particular: thus to have regard to the principles governing the duties of a director in the conduct of the affairs of a company and the rights and duties of majority shareholder in relation to the minority; but to recognise that s 209 is a remedial provision designed to allow the Court to intervene where there is a visible departure from the standards of fair dealing; and in the light of the history and structure of the particular company and the reasonable expectations of the members to determine whether the detriment occasioned to the complaining member's interests arising from the acts or conduct of the company in that way is justifiable.


case_text: J in Turnbull v National Roads & Motorists Association Ltd [2004] NSWSC 577 ; (2004) 186 FLR 360 at 365 370 ( 'Turnbull' ) discussed the background to ss 232 and 233 . In Turnbull , his Honour discussed the proper construction of those provisions and said at 370, amongst other things: An action is capable of being "contrary to the interests of the members as whole" in ways other than being commercially unfair. Being pointlessly wasteful is one example...The ground of being "contrary to the interests of the members as a whole" in s 232 is intended to be an independent one to the ground of being oppressive to, unfairly prejudicial to or unfairly discriminatory against, a member or members whether in that capacity or any other capacity. Campbell J also considered the heading that precedes s 232 and said, amongst other things, at 371: The deliberate change in the law which Parliament has made by enacting s 232 [of the Act] in its present form, with the differences which I have earlier identified from the previous legislation, are such that it is so clear that "contrary to the interests of the members as a whole" is a ground on which the Court could make an order under s 233 , independently of whether conduct, etc, is oppressive to, unfairly prejudicial to, or unfairly discriminatory against a member or members, that the Part heading cannot be used to limit the meaning of s 232(d). In Shelton v National Roads & Motorists Association Ltd (2004) 51 ACSR 278 ( 'Shelton' ), Tamberlin J agreed with the conclusions reached by Campbell J in Turnbull in respect of the proper construction of ss 232(d) and (e) of the Act. Also in Shelton , when speaking particularly of s 232(e) of the Act, Tamberlin J said, amongst other things at [23], that: It is not practicable to delineate the numerous ways in which oppressive conduct may be established. The Court will generally look at the overall course of conduct and consider whether it is so unfair that reasonable directors would not consider it fair. If directors exercise a power so as to impose a disability or burden on a member that is unfair according to ordinary standards of reasonableness and fair dealing, then such conduct may be described as oppressive...The test of unfairness is objective: see Wayde v NSW Rugby League Ltd [1985] HCA 68 ; (1985) 180 CLR 459 at 472 per Brennan J; Morgan v 45 Flers Avenue Pty Ltd (1987) 11 NSWLR 573. The Court should not take a narrow approach to cases of oppression. It is necessary for the Court to come to a conclusion that there has been conduct unfairly prejudicial to or unfairly discriminatory or oppressive to a member before it makes an order to this effect: see John J Starr (Real Estate) Pty Ltd v Andrew (Australasia) Pty Ltd (1991) 6 ACSR 63. His Honour then went on to say, at [24]: The onus of establishing unfairness rests on the applicant asserting the conduct that is contrary to the interests of the members as a whole, or that is oppressive, unfairly prejudicial or discriminatory. An applicant must actually prove oppression before obtaining relief. It is not established simply by showing that the majority are in control of the company, or that the applicant is consistently out-voted, or that the majority have made some questionable decisions from a business point of view. The mere disadvantage of being in a minority does not in itself constitute oppression. It is necessary for each single allegation in an oppression case to be pleaded clearly in order to assess whether the totality may amount to oppression: see Weatherall v Satellite Receiving Systems (Australia) Pty Ltd (1999) 92 FCR 873. Disagreement with a decision by a majority of shareholders and directors on the part of a minority shareholder does not entitle that shareholder to relief under the section: Re Bountiful Pty Ltd (1994) 12 ACLC 902.


case_outcome: referred to

case_text: The Federal Magistrate's decision of 16 October 2006 was an interlocutory decision: compare Hall v Nominal Defendant [1966] HCA 36 ; (1966) 117 CLR 423 at 440 per Taylor J. Accordingly, pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth), the applicant requires leave to appeal before he can proceed with his appeal. It would appear that this application is made out of time, although in the circumstances of the case nothing ultimately turns on this. This is because, for the reasons stated below, I would not grant leave to appeal in any event.


case_title: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397

case_text: Whether or not leave to appeal should be granted or refused depends on two matters. They are: (1) whether in all the circumstances the decision is attended with sufficient doubt to warrant its being reconsidered by an appellate court; and (2) whether substantial injustice would result if leave were refused, supposing the decision to be wrong: see Décor Corporation Pty Ltd v Dart Industries Inc & Anor (1991) 33 FCR 397 at 398-399 per Sheppard, Burchett and Heerey JJ. For present purposes, I assume that this second question would be answered in the applicant's favour in view of the claims that he has made. Thus, this application turns on the question, whether the decision of the Federal Magistrate is attended by such doubt that it warrants reconsideration on appeal. 8 The applicant filed an affidavit in support of his application, which stated that he was unrepresented, not knowledgeable in legal matters, and had previously made unsuccessful attempts to lodge his appeal. In this affidavit, he asserted that he had an arguable case for a protection visa since he was a member of "the Akali Dal National Party, which is the representative of the Sikh faith in the Indian Punjab" and repeated matters going to the merits of his claim. In written submission filed in support of his application, the applicant discussed his membership of the Akali Dal and the conditions for Sikhs in India, referring especially to events between 1987 and 1993. He complained that the Tribunal relied wholly on information prepared by the Indian authorities, and on information that was not up-to-date. He submitted that the Tribunal had not taken his fear into consideration and had not addressed "the four key elements to be a refugee". He reiterated his claim to be a refugee and said that the Tribunal wrongly dismissed his application. 9 The draft notice of appeal apparently raised the following grounds: (1) the Federal Magistrate failed to appreciate the legal errors made by the Tribunal; (2) his fears of persecution were not taken into consideration; and (3) the authorities failed to investigate the mass killings of Sikh youths. The applicant did not add greatly to these matters at the hearing, although he reiterated his contentions about conditions in India that affected persons of the Sikh faith.


case_text: HK Systems then contended that the Minister was bound to act on the basis of the law as it was at the time of his decision. That obligation arose by analogy with the principle applied to courts which holds that it is wrong to allow an adjournment of a case to allow a party to take advantage of a change in the law: Meggitt Overseas Ltd v Grdovic (1998) 43 NSWLR 527; Attorney-General of the Commonwealth v Foster (1999) 84 FCR 582 ; [1999] FCA 81.


case_text: Unreasonableness may arise from discrimination without justification, that is to say, a benefit or detriment distributed unequally amongst the class of persons who are the object of the power: Fares Rural Meat and Livestock Co Pty Ltd v Australian Meat and Livestock Corporation [1990] FCA 139 ; (1990) 96 ALR 153 at 167-8. 43 HK Systems argued that the decision unreasonably discriminated against it. There was evidence that approximately 244 Remington 7615 rifles were imported into Australia in deliveries in January (1), February (1), July (50), August (92), and September 2008 (100), 9 SMLE Enfields Bolt Action rifles were imported into Australia in deliveries in February (1), March (2), April (1), May (2), June (2), and September 2008 (1) and 42 SAKO TRG 21 rifles were imported into Australia in deliveries in April (1), May (6), July (32) and August 2008 (3). HK Systems said that each of these three models had a military style appearance. The Minister did not order the detention of any of them. Indeed, the detention of the R8 was the only time the power under s 77EA had been used in relation to the import of firearms, and only the second time the power had ever been used. The first detention order related to the import of kava into Australia due to its impact on indigenous communities. 44 There is a logical resistance to allowing actions which occurred after the decision in question to inform the earlier motivation for making the decision. One needs to infer that what happened later was intended at the time of the decision. Thus discrimination would be established if, in this case, when the Minister ordered the detention of the R8 he knew that other firearms of like appearance would be imported by other dealers later, and that he had determined then not to order detention of those firearms when they were imported later. 45 The inference is difficult to draw when there are explanations other than a desire to discriminate available to explain the decision. In the present case the minute from Mr Potter to the Minister which recommended that the Minister make the detention order contained the following: 18 Further notices will only be required if the importation of additional firearms occurs, or in the event of an attempt to import similar firearms with differing make and model details prior to the proposed regulatory amendment being enacted. It is likely that information regarding the detention will flow through to importers and prevent further shipments being sent to Australia. ... 20 In the event that the permission issuing authorities, the State/Territory Police Firearms Registries, advise Customs that applications have been received for further similar firearms, Customs will prepare a further notice to this effect for your signature. 46 Thus, on the evidence, it is open to conclude that when the Minister made his decision he believed that the detention order would discourage the import of firearms with a military style appearance, and, if not, Customs would ask him to make further detention orders. But there is more evidence to be considered. 47 In an affidavit sworn on 27 February 2008, George Doukas, the manager of HK Systems, complained that HK Systems had been singled out by the detention decision. He exhibited material relating to 10 types of firearms including the Remington 7615. He said these firearms were in the same category under the regulations as the R8 and had a similar appearance to the R8 and they were being imported into Australia, but the R8 was detained. 48 Mr Potter gave evidence before Weinberg J in an interlocutory application brought by HK Systems for leave to interrogate the respondents. The transcript was evidence in this hearing by agreement of the parties. Mr Potter gave evidence that the Trade and Policy Regulation Branch is responsible for overseeing customs administration of the regulations in relation to the importation of weapons. Mr Potter gave evidence that no one outside Customs, on the Minister's staff or anyone connected to the Minister requested that the minute be prepared.


case_title: Meggitt Overseas Ltd v Grdovic (1998) 43 NSWLR 527


case_text: If the principle exists in the form proposed (as to which see Warramunda Village Inc v Pryde (2002) 116 FCR 58 ; [2002] FCAFC 58 per Finkelstein J at [58]) and if it applies to the Minister making an administrative decision, both of which are open to argument, there is no merit in the submission that the Minister failed to act on the basis of the law applicable to him at the time of his decision. 35 His function was to consider whether the public interest required the R8 to be detained by Customs. The regulations allowed the R8 to be imported. The Minister did not act to prevent the regulation operating in that regard. But, as explained in [18] [22] the regulations did not govern the decision to be made by the Minister. The fact that the regulations allowed the R8 to be imported did not prevent the Minister making an order for detention. The legislative scheme contemplated that his decision could overrule the operation of the regulations. 36 HK Systems also argued that the Minister failed to consider the public interest as required by s 77EA, but rather acted for an ulterior purpose, namely, to give effect to his view that the regulations should be amended.


case_text: It can be seen that if the Minister is satisfied that the visa holder has not complied with condition 8202 the Minister must cancel the visa holder's visa. It was contended, because of the provisions of condition 8202, that a visa holder could only comply with that condition if the visa holder complied with both paragraphs (2) and (3) of condition 8202: Gerhard v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 495 ; Tian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 238.


case_title: Tian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 238


case_outcome: affirmed

case_text: is an appeal against a judgment of a Federal Magistrate delivered on 29 April 2009 ( SZMZR v Minister for Immigration and Citizenship [2009] FMCA 392) in which the Federal Magistrate dismissed an application for judicial review of a decision of the Refugee Review Tribunal ( the Tribunal ) made on 14 October 2008 and handed down on 4 November 2008. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship ( the delegate ) to refuse to grant protection visas to the appellants. The appellants are husband and wife. Only the first appellant (the husband) appeared before me today. There was no appearance by his wife although the first appellant informed me that he was speaking for his wife. I shall hereafter refer to the first appellant as the husband . Before the Tribunal the second appellant indicated that she did not have an individual claim to be a refugee and that she was applying as a member of her husband's family. It appears that that has remained the position both before the Federal Magistrate and in this Court.


case_text: ground is merely a repetition of a similar ground argued before the Federal Magistrate. It is an attempt to re-agitate the merits which, of course, is not permissible in this appeal. The approach which the Federal Magistrate took to this ground was correct. Indeed, a fair reading of the Tribunal's decision supports the proposition that the approach which the Tribunal took to the question embedded in this ground of appeal was also correct. This Court cannot engage in fact-finding about the merits of the administrative decision under review (see NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 ; and Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126 ; (1998) 86 FCR 547).


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


case_text: in safely relocating, the applicant is not expected to modify his or her behaviour in order to avoid persecution ( SZATV [2007] HCA 40 ; 233 CLR 18 ; Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253 ; (1994) 52 FCR 437). At [41] to [46] of its reasons, the Tribunal gave careful consideration to the appellants' ability to relocate within India. In those paragraphs of its reasons, the Tribunal gave express consideration to the practicalities of the appellants relocating in light of the husband's personal situation and circumstances (including his previously demonstrated ability to relocate within India), as well as his financial resources, skills and knowledge. The Federal Magistrate noted that the findings and reasons of the Tribunal did not manifest a misunderstanding or a misapplication of the relevant principles. In my judgment, the Federal Magistrate was correct when she expressed this conclusion, and there was no error in the approach of the Tribunal in dealing with relocation. Ground 3 was also advanced before the Federal Magistrate. The Federal Magistrate noted that the Tribunal concluded that it could not be satisfied that there was a real chance of persecution of the husband in the foreseeable future by members of the BJP elsewhere in India. Her Honour said that it was open to the Tribunal to prefer the country information where the husband's evidence differed from it. At the beginning of its reasons for decision, the Tribunal set out the law relating to the real chance test which is related to the concept of a well-founded fear for a Convention reason. In my judgment, it correctly articulated the relevant principles. In substance, the complaint under Ground 3 is a complaint that the Tribunal came to the wrong view on the facts. In my judgment, there is no error disclosed in the Tribunal's decision and, in particular, no error which could be characterised as jurisdictional error. Accordingly, Ground 3 has not been made out. For these reasons, there has been no error on the part of the Federal Magistrate demonstrated by the appellants, nor have they been able to demonstrate jurisdictional error on the part of the Tribunal. Accordingly, I propose to dismiss the appeal with costs. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster. Associate: Dated: 19 August 2009 The Appellants appeared in person Solicitor for the First Respondent: Mr J Pinder of DLA Phillips Fox Solicitor for the Second Respondent: The Second Respondent submitted save as to costs Date of Hearing: 17 August 2009 Date of Judgment: 17 August 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/904.html


case_title: SZATV v Minister for Immigration and Citizenship [2007] HCA 40 ; (2007) 233 CLR 18

case_text: in safely relocating, the applicant is not expected to modify his or her behaviour in order to avoid persecution ( SZATV [2007] HCA 40 ; 233 CLR 18 ; Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253 ; (1994) 52 FCR 437).


case_outcome: applied

case_title: Cropper v Smith (1884) 26 Ch D 700

case_text: power which is given by that rule was described by Bowen LJ in Cropper v Smith (1884) 26 Ch D 700 at 710-711: '... the objects of Courts is to decide the rights of the parties, and not to punish them for mistakes in the conduct of their cases ... I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the Court ought not to correct, if it can be done without injustice to the other party ... as soon as it appears that the way in which a party has framed his case will not lead to a decision of the real matter in controversy, it is as much a matter of right on his part to have it corrected, if it can be done without injustice, as anything else in the case is a matter of right.'


case_text: dicta has been applied on any number of occasions since that time and, most recently and relevantly, by the High Court in Clough and Rogers v Frog (1974) 4 ALR 615 and the State of Queensland & Anor v J L Holdings Pty Ltd [1997] HCA 1 ; (1997) 189 CLR 146. The principle is still sound.


case_title: State of Queensland & Anor v J L Holdings Pty Ltd [1997] HCA 1 ; (1997) 189 CLR 146


case_text: In order to determine the issues in this appeal, it is useful to refer to the recent decision of Snelgrove v Roskell (2007) 157 FCR 313. In that case, Jacobson J considered whether an incorrect reference to the legislation, which was the statutory source of post-judgment interest claimed in the bankruptcy notice, resulted in the bankruptcy notice being invalid. In determining the correct principles to apply, his Honour held (at [29]-[31]): The High Court said in Adams [ v Lambert (2006)] [2006] HCA 10 ; 225 ALR 396 at [18] that if there is a failure to comply with a provision of the Act or the Bankruptcy Regulations 1996 Cth (the Regulations), the first question which must be asked is whether the defect or irregularity is a formal one within the purview of s 306. If it is, it is then necessary to ask whether substantial injustice has been caused by the defect or irregularity and whether the injustice cannot be remedied by an order of the Court. It must be borne in mind that these are separate and distinct questions. The first question, that is, whether the defect or irregularity is formal, involves two levels of enquiry. These were stated by an earlier decision of the High Court in Kleinwort Benson Australia Ltd v Crowl [1988] HCA 34 ; (1988) 165 CLR 71, and applied in Adams [2006] HCA 10 ; 225 ALR 396 at [25] ff. The relevant enquiry is: does the bankruptcy notice fail to meet a requirement made essential by the Act or the Regulations; or could it reasonably mislead a debtor as to what is necessary to comply with the notice; see Kleinwort Benson 165 CLR at 79; Adams 225 ALR 396 at [25]. 25 In determining what is an essential requirement one is guided by the High Court in Adams v Lambert [2006] HCA 10 ; (2006) 225 ALR 396 at [25] - [26] : In some cases the answer to that question may be easy. In others, a difficult question of judgment may be involved. The matter for judgment was identified by this court in Kleinwort Benson [165 CLR 71] at 79-81. In that case, the majority contrasted the concept of a formal defect or irregularity with a defect or irregularity that renders a bankruptcy notice a nullity that cannot be saved by s 306. To describe a defect as merely formal, or to describe a notice as a nullity, is, of course, to state a conclusion, rather than the reason for reaching that conclusion. Even so, it is necessary to identify the question that arises for judgment. The majority, referring to James [ v FCT [1955] HCA 75 ; (1955) 93 CLR 631] at 644 , and Pillai v Comptroller of Income Tax [1970] AC 1124 at 1135 , summarised the exclusionary aspect of the meaning of "a formal defect or an irregularity" by saying [at 79] : The authorities show that a bankruptcy notice is a nullity if it fails to meet a requirement made essential by the Act, or if it could reasonably mislead a debtor as to what is necessary to comply with the notice. The question of construction raised by the words "a formal defect or an irregularity" is one to be decided by reading s 306 in the context of the whole Act, informed by the general purpose of the legislation, and the particular purpose of the provisions relating to bankruptcy notices. It is similar to the question that, in former times, would be explained by asking whether a statutory requirement was mandatory or directory. In Project Blue Sky Inc v Australian Broadcasting Authority [(1998) [1998] HCA 28 ; 194 CLR 355 at 390-391] it was said: A better test ... is to ask whether it was a purpose of the legislation that an act done in breach of [a] provision should be invalid ... In determining the question of purpose, regard must be had to "the language of the relevant provision and the scope and object of the whole statute. " 26 The High Court then considered whether the defect constituted a breach of an essential requirement of the Act (at [28]-[30]) (footnotes omitted): The other exclusionary aspect of the expression "a formal defect or an irregularity" in s 306 was said to consist in a failure to meet a requirement made essential by the Act. Here again, the word "essential", in its application in a particular case, involves a conclusion. If a requirement is made essential by the Act, then a failure to meet that requirement is not a formal defect or an irregularity within the meaning of s 306. Whether a requirement is made essential is to be decided by a process of statutory construction undertaken in the manner described above. The majority in Lewis [109 FCR 33] regarded the error in that case as involving a failure to meet a requirement made essential by the Act. To describe an error or a deficiency in a bankruptcy notice as involving a failure to meet a requirement made essential by the Act is to state a conclusion reached after a consideration of the legislative purpose and an evaluation of the significance or importance of the error or deficiency in the circumstances of the case. That question is not answered by observing that there has been a failure to meet a requirement. In this respect, the majority in Lewis placed undue emphasis on the imperative terms of the Act and Regulations. If there were no failure to meet a requirement, there would be no defect or irregularity. Furthermore, as noted earlier, the fact that the requirement is expressed by the use of the term "must" is not conclusive. How otherwise might a requirement as to form be expressed? The misdescription of the relevant section of the District Court Act was not capable of misleading the respondent as to what he had to do to comply with the notice. This is not a matter of dispute. The question is whether the misdescription involved a failure to meet a requirement made essential by the Act. On the true construction of the Act, is it essential that there be no misdescription of the relevant section? Is it the purpose of the legislation that any slip, such as giving a reference to the statutory provision governing pre-judgment interest when what is intended is a reference to the provision governing post-judgment interest, should invalidate the notice? Is this so no matter how clear it might be from other parts of the notice that the claim is for post-judgment interest? 27 The High Court then decided that the defect fell within the scope of s 306 of the Act (at [31]): Section 306, in its application to bankruptcy notices, makes it plain that some instances of non-compliance with the requirements as to the form of a notice will not invalidate the notice. The practical significance of an error or deficiency could vary according to the circumstances of each particular case. Errors or deficiencies in compliance with requirements as to form may involve questions of degree as well as of kind. At the same time, the decision in Kleinwort Benson shows that an error may be covered by s 306 even though it involves a substantial misstatement of an amount of money. It was essential that the bankruptcy notice state the amount claimed. Was it essential that the amount be correct? Section 41(5) made it clear that an overstatement, even a large overstatement, would not necessarily invalidate the notice. This court concluded that it was not the legislative purpose that a substantial understatement should necessarily invalidate the notice. That is to say, accurately stating the amount of interest owing was not a matter of such importance that error necessarily resulted in invalidity. In the present case, overstatement or understatement of the amount of post-judgment interest owing would not necessarily have invalidated the notice. That is part of the context in which legislative purpose is to be considered in deciding whether the reference to s 83A rather than s 85 was fatal. 29 Before me, the appellant contended that the calculation of interest requirement is made essential by the Act because: • the purpose of the requirement is to enable the debtor to verify that the amount claimed is in fact due; • the information required to be provided (namely an interest calculation) is of far greater importance than the requirement under consideration in Adams [2006] HCA 10 ; 225 ALR 396 (to give a precise identification of the provision under which interest is claimed); • in the usual case, the omission has the potential to "reasonably mislead a debtor as to what is necessary to comply with the notice" in the event of an overstatement, the debtor is entitled to pay the actual amount of the debt and not the overstated amount; • in the usual case the omission has the potential to prejudice the debtor's ability to exercise rights under s 41(5) in the event of an overstatement, a notice of overstatement must give sufficient information for the creditor to identify what is said to be alleged misstatement. 30 Each of the above submissions is presented in the abstract and without consideration of the basis of the claim for interest in the Notice. I do not consider it helpful to compare and contrast different types of information that may be included in a notice, and attribute to them lessor or greater importance. The task I have is to consider the legislative purpose of the Act and make "an evaluation of the significance or importance of the error or deficiency in the circumstances of the case". Assuming that the Notice does not comply (substantially or otherwise) with the requirement to give details of the calculation of the amount of interest, or fails to specify the actual interest rates over the relevant period, in my view it is not an essential requirement of the Act that such details be provided having regard to the following particular circumstances of this case: • there is and can be no dispute about the amount of interest claimed, • an order of the Supreme Court of Victoria binding on the debtor has determined (and calculated) the amount of interest claimed, • the Notice accurately sets out the basis of the claim for interest, namely pursuant to the Supreme Court Act , and has been determined (and calculated) by the Supreme Court of Victoria in the 2006 Orders, and • there is (and can be) no suggestion that any interest is claimed in the Notice itself otherwise than as set out therein. 31 I cannot envisage that the legislative purpose of the Act would be served by concluding that the failure to adhere to the form in the way alleged by the appellant would lead to the Notice being a nullity. It would be a classic situation of preferring form over substance to conclude that the Notice was a nullity. The whole purpose of the essential requirements of the Act is to inform the debtor clearly and simply of the basis of the debt said to be owed, and this has been achieved. 32 In any event, in my view, the calculation of interest in itself is not necessarily an essential requirement of the Act, irrespective of the circumstances of this case. 35 The High Court of Australia in Adams [2006] HCA 10 ; 225 ALR 396 considered all judgments of the court in Lewis [2000] FCA 1915 ; 109 FCR 33. After considering the minority decisions of Gyles and Lee JJ, the court approved their approach and applied the legislative purpose test applied by Gyles and Lee JJ (at [33] to [34]). I do not conclude, however, that the High Court necessarily approved the comments of Lee J concerning Re Bankruptcy Act 1966 ; Ex parte Commercial Banking Co of Sydney Ltd (1979) 23 ALR 522. Further, his comments in this regard were made concerning the old notice prescribed pursuant to s 41(2) of the Act as it was prior to the amendments made in 1996 where there was no requirement in the same terms as note 2 of the new form of the bankruptcy notice, although reflections were made by his Honour on the new notice which impacts upon his views as to what would be expected by the new notice. 37 In light then of the approach to the legislative purpose adopted by Lee and Gyles JJ, as approved by the High Court, in my view nothing in the Act indicates that now the calculation itself must be included in the Notice. In fact, if it were not a requirement prior to the 1996 amendment, the tendency would be towards the view that providing such information is not now a statutory requirement in the Kleinwort Benson [1988] HCA 34 ; 165 CLR 71 or Adams [2006] HCA 10 ; 225 ALR 396 sense, if one adopts the approach of Gyles J as referred to above. 42 Justice North did not have the advantage of the reasoning in the subsequent cases referred to in this judgment, particularly Adams [2006] HCA 10 ; 225 ALR 396; Lewis [2000] FCA 1915 ; 109 FCR 33 and Snelgrove 157 FCR 313. With the benefit of the reasoning in these decisions, North J would have needed to have undertaken an analysis of the failure to comply with note 2 of the Schedule to the form in the context of the Act to determine whether it was an essential requirement. Merely equating such a failure to a failure to attach a copy of the judgment to the bankruptcy notice without the further analysis now required, would not be sufficient. In the circumstances, I do not regard the decision of North J as one I should follow. In any event, the circumstances of the case before me are quite different from those confronting his Honour, for he did not have a binding determination of the Supreme Court of Victoria declaring the amount of interest payable which was the basis of the interest claimed in the bankruptcy notice.


case_text: The High Court found that the mistake in the bankruptcy notice was not a breach of an essential requirement of the Act and that s 306 applied to remedy the default (at [32]-[34]): In Lewis [at [95]] , Gyles J accurately identified the question as whether correct completion of the form prescribed by the regulations in every respect is a requirement made essential by the Act. Bearing in mind that, in the present case, the error could not have misled the respondent as to what it was necessary to do in order to comply with the requirements of the notice, it is difficult to understand how, consistently with Kleinwort Benson , the respondent could succeed without an affirmative answer to that question. In their dissenting reasons in Lewis , Lee J and Gyles J both gave a detailed account of the 1996 amendments to the Act and Regulations. It is unnecessary to repeat what they said in that respect. Lee J concluded [at [93]] : Properly construed, the Act and Regulations do not express an intention to create a new regime of strict compliance imposed on a judgment creditor issuing a bankruptcy notice. The tenor of the Act and Regulations is not consistent with that conclusion. An attempt has been made to recast the process of issue of a bankruptcy notice in terms more understandable to a judgment debtor, but the essential requirements of a bankruptcy notice remain as they have been stated by bankruptcy legislation over many years. Lee J also said [at [97]] : It cannot be correct that amendments to the Act that left undisturbed s 41(5) and (6) which state that a notice that demands payment of a sum that is unjustified or excessive is only invalid if a debtor gives notice within a prescribed period, introduced a new regime in respect of bankruptcy notices under which a judgment debtor could have such a notice set aside where the amount claimed is due in fact and there is no prospect that the debtor could be misled as to the steps to be taken to comply with the notice. The amending Act could not have contemplated that a mistaken citation of the source of entitlement to claim interest would be a substantive defect or irregularity in the notice so as to exclude the operation of s 306 of the Act. That view of the legislative purpose is persuasive. The effect of the majority view in Lewis is to attribute to the legislature an overwhelming preference for form over substance. That should not be done. Given that s 306 relieves against the invalidating consequences of some mistakes in the preparation of bankruptcy notices, the mistake that was made in this case falls within its terms. 41 In Bendigo Bank Ltd v Gard [1999] FCA 1179 ; (1999) 92 FCR 560, North J in an ex tempore decision considered an appeal from a decision of the registrar regarding the failure to make a sequestration order for non-compliance with a bankruptcy notice, by reason that the notice was defective in that it did not include an interest calculation. His Honour considered the decision of Kenny J in American Express International Inc v Held [1999] FCA 321 ; (1999) 87 FCR 583 where her Honour found that failure to attach a copy of the judgment to the bankruptcy notice was a breach of an essential requirement of the Act. At [11], North J held that even though there was no precise analogy between the purpose for which the copy judgment is required by the form, and the purpose for which the interest calculation is required, the interest calculation was nevertheless an essential requirement of the Act. His Honour found that the bankruptcy notice contained a substantive defect by reason of failing to contain an interest calculation.


case_text: In order to determine the issues in this appeal, it is useful to refer to the recent decision of Snelgrove v Roskell (2007) 157 FCR 313. In that case, Jacobson J considered whether an incorrect reference to the legislation, which was the statutory source of post-judgment interest claimed in the bankruptcy notice, resulted in the bankruptcy notice being invalid. In determining the correct principles to apply, his Honour held (at [29]-[31]): The High Court said in Adams [ v Lambert (2006)] [2006] HCA 10 ; 225 ALR 396 at [18] that if there is a failure to comply with a provision of the Act or the Bankruptcy Regulations 1996 Cth (the Regulations), the first question which must be asked is whether the defect or irregularity is a formal one within the purview of s 306. If it is, it is then necessary to ask whether substantial injustice has been caused by the defect or irregularity and whether the injustice cannot be remedied by an order of the Court. It must be borne in mind that these are separate and distinct questions. The first question, that is, whether the defect or irregularity is formal, involves two levels of enquiry. These were stated by an earlier decision of the High Court in Kleinwort Benson Australia Ltd v Crowl [1988] HCA 34 ; (1988) 165 CLR 71, and applied in Adams [2006] HCA 10 ; 225 ALR 396 at [25] ff. The relevant enquiry is: does the bankruptcy notice fail to meet a requirement made essential by the Act or the Regulations; or could it reasonably mislead a debtor as to what is necessary to comply with the notice; see Kleinwort Benson 165 CLR at 79; Adams 225 ALR 396 at [25]. 37 In light then of the approach to the legislative purpose adopted by Lee and Gyles JJ, as approved by the High Court, in my view nothing in the Act indicates that now the calculation itself must be included in the Notice. In fact, if it were not a requirement prior to the 1996 amendment, the tendency would be towards the view that providing such information is not now a statutory requirement in the Kleinwort Benson [1988] HCA 34 ; 165 CLR 71 or Adams [2006] HCA 10 ; 225 ALR 396 sense, if one adopts the approach of Gyles J as referred to above.


case_text: It is convenient to set out the relevant part of the Notice: Schedule Column 1 Column 2 1. Amount of judgments or orders Judgment 12 June 2003 in Supreme Court proceeding number 6302 of 2003 $569,589.65 plus 2. Legal costs if ordered to be paid and a specific amount was not included in the judgments or orders (See Note 1, below) NIL plus 3. If claimed in this Bankruptcy Notice, interest accrued since the date of judgments or orders (See Note 2, below) $190,167.57 4. Subtotal $759,757.22 less 5. Payments made and/or credits allowed since date of judgments or orders $140,000.00 6. Total debt and interest owing pursuant to declaration made by Justice Whelan in proceeding 5047 of 2005 $619,757.22 (NB: Amounts, where applicable, are to be inserted in column 2) FOR INFORMATION OF THE CREDITOR - Notes to the Schedule Note 1 : Legal costs (item 2 of the Schedule) If legal costs are being claimed in this Bankruptcy Notice, a certificate of taxed or assessed costs in support of the amount claimed must be attached to this Bankruptcy Notice. Note 2 : Interest accrued (item 3 of the Schedule) If interest is being claimed in this Bankruptcy Notice, details of the calculation of the amount of interest claimed are to be set out in a document attached to this Bankruptcy Notice. The document must state: a. the provision under which the interest is being claimed; and b. the principal sum on which, the period for which, and the interest rate or rates at which, the interest is being claimed. (NB: If different rates are claimed for different periods, full details must be shown) 7 The calculation of the interest claimed in item 3 of the schedule was set out by the respondent in a document attached to the Notice in the following terms: CALCULATION OF INTEREST CLAIMED IN ITEM 3 OF THE SCHEDULE Interest is claimed pursuant to Section 101(1) of the Supreme Court Act 1986 which provides: "Every judgment debt carries interest at the rate for the time being fixed under Section 2 of the Penalty Interest Rates Act 1983 from the time the judgement was given." By an order made by the Honourable Justice Whelan in the Supreme Court of Victoria, in proceeding number 5407 of 2005 the court declared that the judgement in proceeding 6302 of 2000 remains enforceable and that the sum of $619,757.22 remains outstanding. The sum of $619,757.22 includes interest in the sum of $190,167.57 pursuant to the Penalty Interest Rates Act 1983 . 8 Annexed to the Notice were the 2003 Orders and 2006 Orders. As indicated above, the 2006 Orders included a declaration of the debt owing by the appellant to the respondent as at 11 October 2006 inclusive of interest, being the sum of $619,757.22. It was not disputed that the declaration of Whelan J was binding on the parties. It would appear that the amount of interest was in fact agreed between the parties in the proceeding before Whelan J, as was noted by the federal magistrate (at [8]): In this case the respondent has not produced a schedule explaining how the figure set out in the declaration by Whelan J was calculated. Indeed, it appears that Whelan J reached that figure as a result of admissions made in the pleadings (the respondent alleged that the judgment debt together with interest as at 12 October 2006 was the sum of $619,757.22, and this allegation was admitted by the applicant in the defence). There is now some dispute as to whether or not this figure is calculated precisely in accord with the relevant statutory provisions that apply to judgments of this type in Victoria. However, it is conceded that the declaration of Whelan J is binding. There has been no appeal, nor is it sought to look behind that judgment. Neither party contended before me that these observations of his Honour were inaccurate. 9 It is convenient to set out the relevant statutory context. Section 40(1) of the Bankruptcy Act 1966 (Cth) ('the Act') so far as is relevant, provides: A debtor commits an act of bankruptcy in each of the following cases: ... (g) if a creditor who has obtained against the debtor a final judgment or final order, being a judgment or order the execution of which has not been stayed, has served on the debtor in Australia or, by leave of the Court, elsewhere, a bankruptcy notice under this Act and the debtor does not: (i) where the notice was served in Australia - within the time specified in the notice; or (ii) where the notice was served elsewhere - within the time fixed for the purpose by the order giving leave to effect the service; comply with the requirements of the notice or satisfy the Court that he or she has a counter-claim, set-off or cross demand equal to or exceeding the amount of the judgment debt or sum payable under the final order, as the case may be, being a counter-claim, set-off or cross demand that he or she could not have set up in the action or proceeding in which the judgment or order was obtained; 10 Section 41 of the Act, so far as is relevant, provides: (1) An Official Receiver may issue a bankruptcy notice on the application of a creditor who has obtained against a debtor: (a) a final judgment or final order that: (i) is of the kind described in paragraph 40(1)(g); and (ii) is for an amount of at least $2,000; or (b) 2 or more final judgments or final orders that: (i) are of the kind described in paragraph 40(1)(g); and (ii) taken together are for an amount of at least $2,000. (2) The notice must be in accordance with the form prescribed by the regulations. (3) A bankruptcy notice shall not be issued in relation to a debtor: (a) except on the application of a creditor who has obtained against the debtor a final judgment or final order within the meaning of paragraph 40(1)(g) or a person who, by virtue of paragraph 40(3)(d), is to be deemed to be such a creditor; ... 11 Regulation 4.02 of the Bankruptcy Regulations 1996 (Cth) ('the Regulations') provides: (1) For the purposes of subsection 41(2) of the Act, the form of bankruptcy notice set out in Form 1 is prescribed. (2) A bankruptcy notice must follow Form 1 in respect of its format (for example, bold or italic typeface, underlining and notes). (3) Subregulation (2) is not to be taken as expressing an intention contrary to s 25C of the Acts Interpretation Act 1901 . 12 Section 25C of the Acts Interpretation Act 1901 (Cth) ('the Acts Interpretation Act ') provides: Where an Act prescribes a form, then, unless the contrary intention appears, strict compliance with the form is not required and substantial compliance is sufficient. 13 Section 306(1) of the Act provides: Proceedings under this Act are not invalidated by a formal defect or an irregularity, unless the court before which the objection on that ground is made is of opinion that substantial injustice has been caused by the defect or irregularity and that the injustice cannot be remedied by an order of that court. 35 The High Court of Australia in Adams [2006] HCA 10 ; 225 ALR 396 considered all judgments of the court in Lewis [2000] FCA 1915 ; 109 FCR 33. After considering the minority decisions of Gyles and Lee JJ, the court approved their approach and applied the legislative purpose test applied by Gyles and Lee JJ (at [33] to [34]). I do not conclude, however, that the High Court necessarily approved the comments of Lee J concerning Re Bankruptcy Act 1966 ; Ex parte Commercial Banking Co of Sydney Ltd (1979) 23 ALR 522. Further, his comments in this regard were made concerning the old notice prescribed pursuant to s 41(2) of the Act as it was prior to the amendments made in 1996 where there was no requirement in the same terms as note 2 of the new form of the bankruptcy notice, although reflections were made by his Honour on the new notice which impacts upon his views as to what would be expected by the new notice.


case_outcome: approved

case_text: In Re Spurr; Ex parte Werner (1991) 31 FCR 236, Heerey J considered the validity of a bankruptcy notice which stated the amount of interest due but not the rate of interest applied. The notice also contained inconsistencies as to whether payment was to be made by the debtor in 14 or 21 days. His Honour dismissed the creditors' petition and held that the notice was invalid by reason of the inconsistencies in the notice. As to the calculation of interest, his Honour held at 237: It seems to me that as long as the bankruptcy notice correctly states the amount of interest which is in fact due, the notice is valid and the debtor fails to pay that amount at his peril. No authority was cited which suggests there is any requirement to include in the notice all the information which would be necessary for the debtor to be able to recalculate the amount of interest to his own satisfaction. 40 The decision of Heerey J is consistent with the position observed by Lee J and the view I have arrived at after a review of the authorities. The position adopted by his Honour is, in my view, currently the correct one.


case_title: Snelgrove v Roskell (2007) 157 FCR 313

case_text: In order to determine the issues in this appeal, it is useful to refer to the recent decision of Snelgrove v Roskell (2007) 157 FCR 313. In that case, Jacobson J considered whether an incorrect reference to the legislation, which was the statutory source of post-judgment interest claimed in the bankruptcy notice, resulted in the bankruptcy notice being invalid. In determining the correct principles to apply, his Honour held (at [29]-[31]): The High Court said in Adams [ v Lambert (2006)] [2006] HCA 10 ; 225 ALR 396 at [18] that if there is a failure to comply with a provision of the Act or the Bankruptcy Regulations 1996 Cth (the Regulations), the first question which must be asked is whether the defect or irregularity is a formal one within the purview of s 306. If it is, it is then necessary to ask whether substantial injustice has been caused by the defect or irregularity and whether the injustice cannot be remedied by an order of the Court. It must be borne in mind that these are separate and distinct questions. The first question, that is, whether the defect or irregularity is formal, involves two levels of enquiry. These were stated by an earlier decision of the High Court in Kleinwort Benson Australia Ltd v Crowl [1988] HCA 34 ; (1988) 165 CLR 71, and applied in Adams [2006] HCA 10 ; 225 ALR 396 at [25] ff. The relevant enquiry is: does the bankruptcy notice fail to meet a requirement made essential by the Act or the Regulations; or could it reasonably mislead a debtor as to what is necessary to comply with the notice; see Kleinwort Benson 165 CLR at 79; Adams 225 ALR 396 at [25]. 42 Justice North did not have the advantage of the reasoning in the subsequent cases referred to in this judgment, particularly Adams [2006] HCA 10 ; 225 ALR 396; Lewis [2000] FCA 1915 ; 109 FCR 33 and Snelgrove 157 FCR 313. With the benefit of the reasoning in these decisions, North J would have needed to have undertaken an analysis of the failure to comply with note 2 of the Schedule to the form in the context of the Act to determine whether it was an essential requirement. Merely equating such a failure to a failure to attach a copy of the judgment to the bankruptcy notice without the further analysis now required, would not be sufficient. In the circumstances, I do not regard the decision of North J as one I should follow. In any event, the circumstances of the case before me are quite different from those confronting his Honour, for he did not have a binding determination of the Supreme Court of Victoria declaring the amount of interest payable which was the basis of the interest claimed in the bankruptcy notice.


case_text: Apart from the reference to the Regulations in the last paragraph (to which see Gyles J at [113] in The Australian Steel Company (Operations) Pty Ltd v Lewis [2000] FCA 1915 ; (2000) 109 FCR 33 referred to later which correctly indicates that the task is to focus on the Act not the Regulations), in my view Jacobson J correctly states the matters relevant to the inquiry whether the defect or irregularity in the Notice is a formal defect or an irregularity. 16 However, a preliminary matter to consider is whether the Notice was defective or irregular in any event by reason of a failure to include an interest calculation in accordance with note 2, having regard to the circumstances of this case and to the operation of s 25C of the Acts Interpretation Act . This preliminary matter was raised by the respondent, the federal magistrate having found, in favour of the appellant, that there was a relevant defect or irregularity in the Notice. 17 If there was such a defect or irregularity, then the only remaining issue that I have been asked to determine is whether the Notice failed to meet a requirement made essential by the Act. The appellant did not contend that the failure to include an interest calculation could reasonably mislead a debtor as to what was necessary to comply with the Notice, but said that this was not relevant to determining whether there was a failure to comply with a requirement made essential by the Act. I agree. The relevant inquiry as described by Jacobson J consists of two aspects, which need to be addressed separately, and to the extent the federal magistrate treated both aspects together, in my respectful view he fell into error. 18 However, I turn first to the preliminary matter as to whether the Notice substantially complied with the requirements of the form prescribed by the Regulations. In my view, the Notice does provide an equivalent to the required details of the calculation of the interest claimed as is necessary and prescribed, in the unusual circumstances surrounding the Notice. 19 The following information is contained in or can be derived from the Notice: • The 2003 Orders were made on 12 June 2003 in the amount of $569,589.65 which was the principal sum of the final judgment debt. • Interest which accrued since the date of the 2003 Orders was claimed pursuant to s 101(1) of the Supreme Court Act 1986 (Vic) ('the Supreme Court Act '). • Interest was determined by the Supreme Court of Victoria on the basis of the rate set by the Penalty Interest Rates Act 1983 (Vic) ('the PIR Act') from the date of the 2003 Orders to 11 October 2006. • The 2006 Orders were made on 31 October 2006 and the sum of $619,757.22 remained payable by the appellant to the respondent as at 11 October 2006. • The sum of $619,757.22 included the interest claimed in the sum of $190,167.57 pursuant to the PIR Act and according to the calculation made by the binding determination of the Supreme Court of Victoria. • No further interest was claimed. 33 In Lewis [2000] FCA 1915 ; 109 FCR 33, Lee J considered the amendments to the Act, which were enacted in 1996, reviewed the legislation and considered whether the calculation of interest was a necessary requirement of a bankruptcy notice. His Honour held at [70]-[73]: Under s 41(2) as it now stands, the Act goes no further than restating that which was formerly provided in s 41(1) , namely that a bankruptcy notice be in accordance with the form prescribed. Nothing turns on the fact that the old form was prescribed by rules and the new form prescribed by regulations. On its face, therefore, the amendment has made the Act less prescriptive in operation than it was before the amendment. In the old notice, identification of the judgment relied upon was essential and was provided for in the form. As a matter of practice, costs and interest could be included as part of the sum owing under the judgment provided they were sums for which the creditor could enforce payment by execution, but no further identification of the source of the obligation, other than the judgment, was necessary. (See Kleinwort Benson at 77; Re Manion; Ex parte Deputy Commissioner of Taxation (1979) 23 ALR 270 at 273.) Identification of the authority to claim costs or interest flowed from identification of the judgment or order relied upon and provision of information in respect of costs and interest was not essential for the debtor to obtain an understanding the requirements of the bankruptcy notice. It was suggested in CBC Sydney at 526 that inclusion of particulars of the calculation of interest in the bankruptcy notice was essential to the validity of the notice. It is not clear on the authorities referred to in CBC Sydney that such particulars were ever an essential requirement. It would appear that there was no greater requirement than that the amount claimed for interest be calculated accurately and recited in the notice and not be claimed as an uncalculated amount. (See Re Davis; Ex parte Deputy Commissioner of Taxation (1963) 19 ABC 100; Re McDonald; Ex parte Elder Smith Goldsbrough Mort Ltd (1978) 18 ALR 505 at 507.) The new notice does not require the judgment or order relied upon to be identified in the body of the notice but par 2 of the substantive part of the notice directed to the debtor states that a copy of the judgment or order relied upon by the creditor is attached. It may be said, therefore, that the attachment referred to now performs the essential requirement of the old notice that there be identification of the judgment or order relied upon. It can be seen that if a notice does not recite in the body thereof, particulars of the judgment or order relied upon, it may be necessary to provide a copy of the relevant judgment or order for the debtor to understand the requirements of the notice. (See Haros v National Australia Bank Ltd ( unreported, Federal Court, Ryan J , No 1391 of 1997, 24 November 1997).) However, where a creditor is instructed by a note endorsed on the new notice to attach other documents that relate to matters of costs and interest, it does not follow that such an endorsement expresses the intention of Parliament that provision of that material become an essential requirement of the notice. Furthermore, the only document required to be lodged with the Official Receiver pursuant to reg 4.01, other than the draft bankruptcy notice and additional copies thereof, is the sealed or certified copy of the judgment or order. The Regulations do not require the person applying for the issue of a bankruptcy notice to lodge with the Official Receiver a certificate of the taxed costs or a document showing how interest was calculated if the draft bankruptcy notice includes a claim for costs or interest. As noted earlier, the form of bankruptcy notice in force before the amending Act was enacted did not refer to external documents. As noted above, reg 4.01 does not require more than one sealed or certified copy of the relevant judgment or order be lodged with the Official Receiver and is silent on whether the Official Receiver retains that document or returns it to the party seeking the issue of a bankruptcy notice. Paragraph 2 of the new notice, which seems to place greater reliance on its substance than form, states that a "copy" of the judgment or order relied upon is "attached" and does not state that the "attached" document is a sealed or certified copy of the judgment or order. (See St George Bank Ltd v Klintworth (1998) 86 FCR 240 at 242). (Emphasis added) 34 Justice Gyles agreed with the views of Lee J, and made additional comments at [113]: It is suggested that the 1996 amendments can be construed by reference to the new regulations. I do not agree. The regulations do not control the construction of the Act in any way. The 1996 amendments to the Act itself have nothing new (or relevant) to say concerning the required content of bankruptcy notices. As I have said, the only material change to the Act was to make the position less, rather than more, prescriptive than previously. The circumstance that the form now provides for much more information and is more complicated than hitherto would tend against a conclusion that the correctness and completeness of all information is a statutory requisite in the Kleinwort Benson sense. The varying nature and importance of the contents of the form which appears from the analysis by Lee J supports this conclusion. Delegated legislation is, of course, binding. That proposition is of no assistance in deciding whether strict compliance with a form prescribed by delegated legislation is made essential by the Act within the meaning of the majority judgment in Kleinwort Benson . Consideration of what was said by the majority at 76 of Kleinwort Benson shows that the phrase "made essential by the Act" in this context means what it says, and does not encompass the effect of a form prescribed by the executive government. 35 The High Court of Australia in Adams [2006] HCA 10 ; 225 ALR 396 considered all judgments of the court in Lewis [2000] FCA 1915 ; 109 FCR 33. After considering the minority decisions of Gyles and Lee JJ, the court approved their approach and applied the legislative purpose test applied by Gyles and Lee JJ (at [33] to [34]). I do not conclude, however, that the High Court necessarily approved the comments of Lee J concerning Re Bankruptcy Act 1966 ; Ex parte Commercial Banking Co of Sydney Ltd (1979) 23 ALR 522. Further, his comments in this regard were made concerning the old notice prescribed pursuant to s 41(2) of the Act as it was prior to the amendments made in 1996 where there was no requirement in the same terms as note 2 of the new form of the bankruptcy notice, although reflections were made by his Honour on the new notice which impacts upon his views as to what would be expected by the new notice. 42 Justice North did not have the advantage of the reasoning in the subsequent cases referred to in this judgment, particularly Adams [2006] HCA 10 ; 225 ALR 396; Lewis [2000] FCA 1915 ; 109 FCR 33 and Snelgrove 157 FCR 313. With the benefit of the reasoning in these decisions, North J would have needed to have undertaken an analysis of the failure to comply with note 2 of the Schedule to the form in the context of the Act to determine whether it was an essential requirement. Merely equating such a failure to a failure to attach a copy of the judgment to the bankruptcy notice without the further analysis now required, would not be sufficient. In the circumstances, I do not regard the decision of North J as one I should follow. In any event, the circumstances of the case before me are quite different from those confronting his Honour, for he did not have a binding determination of the Supreme Court of Victoria declaring the amount of interest payable which was the basis of the interest claimed in the bankruptcy notice.


case_text: proceeding commenced on 9 May 2003, with the filing by Ms Wu (referred to hereafter as the applicant) of an application and statement of claim. The history of the proceeding can be ascertained by reference to Wu v Avin Operations Pty Ltd [2006] FCA 36 and Wu v Avin Operations Pty Ltd (No 2) [2006] FCA 792.


case_title: Wu v Avin Operations Pty Ltd (No 2) [2006] FCA 792


case_text: Court has a discretion to permit or refuse an application made in an interlocutory proceeding to cross-examine a deponent on an affidavit that he or she has made, although the discretion to permit such cross-examination is exercised cautiously and, as Nicholson J said in Scanlon v American Cigarette Co (Overseas) Pty Ltd (No 1) [1987] VR 261 at 272, "normally" "somewhat sparingly". Branson J cited this statement of his Honour with approval in Friends of Hinchinbrook Society Inc v Minister for Environment (No 1) (1996) 69 FCR 1 at 17.


case_title: Friends of Hinchinbrook Society Inc v Minister for Environment (No 1) (1996) 69 FCR 1


case_text: question is whether the Court should, in the exercise of this discretion, award security for costs in the second and third respondents' favour. The onus of establishing that security should be granted lies on the second and third respondents: see CBS Records Australia Ltd v Telmak Teleproducts (Aust) Pty Ltd (1987) 72 ALR 270 (" CBS Records ") at 284-285 per Bowen CJ. Having regard to the evidence filed in support of, and in opposition to, the motion, application for security turns principally on the questions, whether or not the applicant is ordinarily resident outside Australia and has no assets within the jurisdiction. Ordinarily resident outside Australia As this passage indicates, the mere fact that an applicant is ordinarily resident outside Australia does not necessarily justify an order for security for costs, although this fact, coupled with the absence of assets within the jurisdiction, tends to attract an affirmative exercise of discretion: compare CBS Records at 284-285. Plainly enough, the fact that an applicant is ordinarily resident outside Australia is necessary to attract O 28 r 3(1)(a) and militates in favour of an order for security. I am not, however, satisfied that the applicant is properly regarded as ordinarily resident outside Australia. It is common ground that she is not an Australian citizen and is not enrolled on the electoral roll. It is also common ground that she is lawfully in this country and has been so since the middle of this year. Further, she maintains that she wishes to make Australia her permanent home. The fact that she was previously resident in this country for around six years between July 1997 and April 2004 lends credence to her statements in this regard. She has business interests in Australia. The property that she rented on her previous stay in Australia is the same property that she and her son are now renting. As appears below, I am satisfied that she has an interest in land within the jurisdiction. Her only son is living in Australia with his wife. I accept that she wishes to reside in Australia on a settled basis indefinitely and, in order to accomplish this, she intends to apply for permanent residence status in accordance with the law of this country. In these circumstances, I reject the respondents' submission that she is ordinarily resident outside Australia. The expression 'ordinarily resident' is one that is used by the law to signify that, for the time being, a person, here the applicant, has chosen to live everyday life in a particular place, on a settled basis and for some continuous period of time. In the present context, if an applicant is ordinarily resident outside Australia, a respondent may reasonably apprehend that there will no funds or other assets within the jurisdiction to meet orders for costs made in the respondent's favour.


case_text: PS Chellaram & Co Ltd v China Ocean Shipping Co [1991] HCA 36 ; (1991) 102 ALR 321 (" PS Chellaram" ') at 323, McHugh J said: "To make or refuse to make an order for security for costs involves the exercise of a discretionary judgment. That means that the court exercising the discretion must weight all the circumstances of the case. The weight to be given to any circumstance depends not only upon its own intrinsic persuasiveness but upon the impact of the other circumstances which have to be weighed. A circumstance which may have very great weight when only two or three circumstances have to be weighed may be of minor significance when many circumstances have to be weighed. However, for over 200 years, the fact that a party, bringing proceedings, is resident out of the jurisdiction and has no assets within the jurisdiction has been seen as a circumstance of great weight in determining whether an order for security for costs should be made. Indeed, for many years the practice has been to order such a party to provide security for costs unless that party can point to other circumstances which overcome the weight of the circumstance that that person is resident out of and has no assets within the jurisdiction."


case_text: R v Barnet London Borough Council, Ex parte Shah [1983] 2 AC 309, Lord Scarman developed the concept of 'ordinarily resident', concluding at 343 that: "...'ordinarily resident' refers to a man's abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or long duration." See also Mohamed v Hammersmith and Fulham London Borough Council [2001] UKHL 57 ; [2002] 1 AC 547.


case_title: Mohamed v Hammersmith and Fulham London Borough Council [2001] UKHL 57 ; [2002] 1 AC 547


case_title: Logue v Hansen Technologies Ltd (2003) FCR 125

case_text: Weinberg J said in Logue v Hansen Technologies Ltd [2003] FCA 81 ; (2003) 125 FCR 590 (" Logue ") at 598: "The English authorities suggest that if may also be possible for a person to have two ordinary residences, one within the jurisdiction and one outside. In such a case the Court has power to order security for costs, but that person's connection with the United Kingdom will be relevant to the exercise of that discretion. The closer the connection, the greater the relevance. If the claimant has an established home, and is resident, though not 'ordinarily resident' in that country, security will rarely be ordered. If the claimant has an established home and is ordinarily resident in that country, security will be ordered even more rarely..." After reviewing the authorities, most of which were English, Weinberg J said, at 599, that "the test for ordinary residence depends to a significant degree upon the state of mind of the person whose residence is in question. The language used in a number of the cases focuses upon whether the person habitually and normally resides in the jurisdiction, and does so for a settled purpose." I agree with his Honour in this regard. Each case will, naturally enough, depend on its own facts. A person may be said to habitually and normally reside in the jurisdiction, even though he or she settled there comparatively recently. The onus rests on the respondents to show that the applicant is not now resident in Australia. They have not demonstrated this to my satisfaction, on the balance of probabilities. The applicant's evidence establishes that she is currently living in suburban Melbourne and has chosen to make her home in Australia at least until her current visa expires in 2011, with a view to settling in this country indefinitely if lawfully permitted to do so. As I have said, various other factors lend credence to her claim: see [26]. She is, therefore, not to be taken as ordinarily resident outside the jurisdiction. I do not consider the possibility that she may fail in obtaining permanent residence status strongly militates against this conclusion. Assets within the jurisdiction


case_text: the proceeding has been on foot since 9 May 2003, the respondents have not made any application for security prior to their motion of 15 August 2006. Further, it is apparent that the second respondent ought to have been aware for at least eighteen months that she has been living in China, although, as I have said, she is now living in Melbourne. Whether or not the second respondent earlier gave the instructions to apply for security for costs as he claims, the fact remains that this application was not made until comparatively recently and the applicant has incurred costs in the meantime. This also militates against the respondents' application. Applications for security should be made without delay. As French J said in Bryan E Fencott and Associates Pty Ltd v Eretta Pty Ltd (1987) 16 FCR 497 (" Bryan E Fencott ") at 514: "The further a plaintiff has proceeded in an action and the greater the costs it has been allowed to incur without steps being taken to apply for an order for security for costs, the more difficult it will be to persuade the court that such an order is not, in the circumstances, unfair or oppressive." Indeed, it has been said that delay on a respondent's part may give rise to a waiver of a respondent's entitlement to security for costs: see Bryan E Fencott at 514-515 and the authorities there cited. Inadequate evidence of estimate of costs The respondents estimate that the costs of the proceeding could exceed $300,000 but they do not provide any proper basis for this estimate. The basis for this estimate is said to be the second respondent's knowledge of the costs of the litigation, but, as the applicant said, this knowledge is entirely unparticularised. The grounds for the assumption on which the estimate are based are otherwise unsupported. There is no other evidence filed in support of the second respondent's estimate of costs.


case_title: Soh v Commonwealth [2006] FCA 575

case_text: Madgwick J said in Soh v Commonwealth [2006] FCA 575 at [30] "[i]f a party seeks security for costs it is reasonable for the Court to insist that at least the best practicable efforts at estimation of the relevant costs be made". The second respondents' general and largely unsupported estimate is not sufficient for this purpose. Further, it must be borne in mind that both the second and third respondents are presently unrepresented and thus not presently incurring legal costs. Claimed Injustice to the Respondents On what is before the Court, neither the applicant's claim nor the respondents' defence can be described as untenable. The merits of the parties' respective positions are thus properly matters for trial.


case_text: to the extent that the appellant raises an alleged contravention of s 424 of the Act by reason of a failure to comply with s 424(2) , that matter has now been resolved by the High Court in Minister for Immigration and Citizenship v SZKTI (2009) 258 ALR 434. Section 424(2) does not limit the ability of the Tribunal to get information that it considers relevant by reason of s 424(1). In any event, even if s 424(2) applied, the request to the Department to provide information did comply with s 441A of the Act, as did the two s 424A letters sent to the appellant. Conclusion It follows that the appellant has not established any basis for, or merit in, any of the grounds of appeal in the notice of appeal or the additional grounds sought to be relied on in the written submissions. Leave to rely upon grounds not raised before the Federal Magistrate is refused. The appellant has not demonstrated any jurisdictional error on the part of the Tribunal or any error on the part of the Federal Magistrate. The appeal should be dismissed with costs. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett. Associate: Dated: 22 September 2009 Counsel for the Appellant: The Appellant appeared in person. Counsel for the First Respondent: Mr J P Knackstredt Solicitor for the First Respondent: Clayton Utz Date of Hearing: 26 August 2009 Date of Judgment: 22 September 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/1062.html


case_text: Magistrate Scarlett also discussed a possible breach of s 424B(2) of the Act with respect to the letter sent to the Department requesting documents relating to the appellant's previous application for a visa. His Honour referred to SZLWQ v Minister for Immigration and Citizenship [2008] FCA 1406 ; (2008) 172 FCR 452 , where Buchanan J concluded that s 424B(2) does not establish an obligation on the Tribunal which could lead either to statutory breach or to jurisdictional error. Notice of appeal The grounds of appeal in the notice of appeal are in summary: (1) That the Federal Magistrate failed to find that the Tribunal decision was "unjust" and did not take into account the "full gravity of circumstance and consequence of the claims"; (2) That the Tribunal denied the appellant procedural fairness by concluding that he was not a credible witness when such a conclusion was not open on the evidence; and (3) That the Tribunal failed to consider "all the materials readily available and/or accessible". The grounds of appeal are unparticularised. Ground 1 of the notice of appeal


case_text: appellant is a citizen of India who arrived in Australia on 15 February 2008. He lodged an application for a protection visa which was refused by a delegate of the Minister. He applied to the Tribunal for a review of that decision, which the Tribunal affirmed. He appealed to the Federal Magistrates Court, which dismissed his application to review the decision of the Tribunal ( SZMTQ v Minister for Immigration & Citizenship [2009] FMCA 29). The appellant claimed to fear persecution in India due to his political opinion. He said that he joined the National Students Union of India in 1991 and later became an influential member of the Congress Party (CP). He further claimed that he was a recognised local astrologer and that this, coupled with his political work, resulted in overtures from members of the Bharatiya Janata Party (BJP) asking that he change party allegiances. The appellant claimed that the BJP believed that he possessed a " karishma" (miraculous power) which could " change the political scenario ". He said that if he did not join the BJP, its supporters would kill him and his family. Before the Tribunal the appellant raised a further claim relating to his operation of a computer business. He alleged that police had used his email address and internet connection to make enquiries about holders of certain mobile phone numbers and that these enquiries resulted in the arrest of several acquaintances of a Mr Singh, who himself was allegedly a " professional killer ". The appellant claimed that he was blamed for these arrests and that Mr Singh continued to pursue him.


case_text: No point has been taken by the appellant as to the late filing of this Notice and, in light of the first respondent's attitude to the procedural defect identified in the Notice, no point of substance arises from the late filing of that Notice. As I have said, leave to appeal is required (see Decor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655 ; (1991) 33 FCR 397). In order to secure leave to appeal from an interlocutory judgment, an applicant must show that there is sufficient doubt as to the correctness of the judgment below to warrant review and, further, that, if the judgment below is found to be wrong, substantial injustice would be suffered by the applicant if leave to appeal were refused. 4 I will continue to refer to the appellant as "the appellant" notwithstanding the fact that I propose to deal with the matter upon the basis that the process filed constitutes an application for leave to appeal. Ms Weston, on behalf of the first respondent, accepts that I should approach the matter on the basis that the process filed is an application for leave to appeal from the Federal Magistrate's decision and I intend to deal with the matter on that basis. 5 The appellant is a citizen of China who arrived in Australia on 11 November 2007. On 4 December 2007 the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship. A delegate of the first respondent refused that application on 16 January 2008. On 31 January 2008 the appellant applied to the Tribunal for a review of that decision. 6 In the proceedings before the Tribunal the appellant claimed to have a well-founded fear of persecution by reason of her practice of Falun Gong. She claimed before the Tribunal that she was introduced to Falun Gong in 2000, though she later stated she had been introduced to Falun Gong in 1997 by a customer in the shop where she worked. She said that in 2007 she was practising Falun Gong at a friend's house and that the police came and arrested them. She claimed that she had been detained for five days during which time she was tortured. She said that she was released when her husband paid a large sum of money, presumably to the authorities. 7 The Tribunal found that the appellant was not a credible witness. The Tribunal found that the appellant's evidence was inconsistent, implausible and confused and noted that in many instances she was not frank or forthcoming in the answers she gave.


case_text: The First and Third to Thirteenth Respondents sought a costs order for a " gross sum " as permitted by O 62, r 4(2)(c) of the Federal Court Rules . It is considered appropriate to make such an order. The making of such an order in the present proceeding would avoid the additional expense and delay inevitably involved in taxation: cf Beach Petroleum NL v Johnson (1995) 57 FCR 119 at 120. An Affidavit as filed today quantifies the costs to date incurred by those Respondents as being in excess of $10,000; the " gross sum " for which an order is sought is $7,500. There is not considered to be any real prospect that the Appellant would obtain on taxation a lesser quantification: cf Sluggett v Human Rights & Equal Opportunity Commission [2002] FCA 1060. It is thus appropriate to make an order in that amount.


case_text: The Affidavit as filed by the Appellant on 16 July 2008 opposing an order dismissing the proceeding provides no reason for not making that order and provides no explanation as to why the orders previously made have not been complied with. The fact remains, however, and is readily acknowledged by the Appellant, that she is in no better position today than she was on 4 April 2008 to meet any order requiring the provision of security. The Affidavit merely sets forth the concerns of the Appellant and the issues that she wishes to continue to pursue. As noted by Black CJ, Sheppard and Einfeld JJ in Microbio Resources Inc v Betatene Ltd (Unreported, FCA, 8 October 1993): The Court is careful to see that orders for security for costs do not work injustice to parties against whom such orders are made, but if those parties do not comply with the orders and give no evidence or explanation as to why they have not complied with them, they cannot be heard to complain of injustice if, after a considerable length of time, and extensions of time, the ultimate sanction of dismissal is applied. It is incumbent upon parties in such circumstances to provide evidence of their position. See also: Billinudgel Pastoral Co Pty Ltd v Westpac Banking Corporation (Unreported, FCA, Cooper J, 27 March 1998); Cosdean Investments Pty Ltd v Football Federation Australia Ltd (No 3) [2007] FCA 766 at [3] per Mansfield J.


case_text: Had there been a change in the circumstances of the Appellant or any prospect that the Appellant could provide security if further time were permitted, the proceeding may well have been stayed and the time previously ordered extended. The Court undoubtedly has power to vary orders previously made, including a power to vary the time at which security is to be provided: Federal Court of Australia Act 1976 (Cth), s 56(3) ; Federal Court Rules , O 28, r 5(2). As to the practice of the Court and the circumstances in which that power may be exercised, in Truth about Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd [2001] FCA 1603 , Hely J observed: [11] It is clear from the terms of O28 r5(2) that the Court has power to set aside or vary the original security for costs order. The Court retains jurisdiction, because of the very nature of an interlocutory order, to set aside, vary or discharge it up to the time of the final disposition of the proceedings. However, as McLelland J recognised in Brimaud v Honeysett Instant Print Pty Ltd (1988) 6 ACLC 942 , it would be conducive to great injustice and enormous waste of judicial time and resources if there were no limit on the power of a party to have any interlocutory application or order relitigated at will. Hence the ordinary practice is that an application to set aside, vary or discharge an order of a substantive nature made after a contested hearing in contemplation that it would operate until a final disposition of the proceedings, must be founded on a material change of circumstances since the original application was heard, or the discovery of new material which could not reasonably have been put before the Court on the hearing of the original application. That principle was applied by a Full Court of this Court in Darling Harbourside (Sydney) Pty Ltd v Sanirise Pty Ltd (unreported, Beaumont, Carr, Sackville JJ, 17 May 1996) to an order for the provision of security for costs. The Full Court set aside an order varying an order for the provision of security upon the basis that there had been no material change in circumstances established so as to warrant a variation of the original order. See also: Capital Webworks Pty Ltd v Adultshop.com.Limited [2008] FCA 40 at [12] per McKerracher J.


case_title: Cosdean Investments Pty Ltd v Football Federation Australia Ltd (No 3) [2007] FCA 766


case_title: Lawrance v Commonwealth [2008] FCA 417

case_text: Orders were previously made in this proceeding on 4 April 2008 requiring the Appellant to provide security for costs: Lawrance v Commonwealth [2008] FCA 417. Those orders required security to be provided at two stages -- the first stage required 50% of the security to be provided within 21 days of those orders being made; the second stage required the balance of the security to be provided 21 days prior to the hearing of the appeal to this Court from a decision of the Federal Magistrates Court: Lawrance v Commonwealth (No 5) [2007] FMCA 1934. 8 Today the Appellant has frankly -- and quite properly -- conceded that she remains unable to meet any order requiring security to be provided. Her position is that the present proceeding should remain stayed as she may ultimately prevail in a number of other proceedings she is pursuing in the Federal Magistrates Court. If ultimately successful in those other proceedings, she contends that it would be unjust to have the present proceeding in this Court dismissed. Whatever success the Appellant may or may not have in those other proceedings, however, is a matter to be resolved in those other proceedings. Appropriate orders will be made by the Federal Magistrates Court to resolve those proceedings. They have no relevance to the present proceeding, other than to possibly support a submission advanced by the Respondents that the continued pursuit of the present proceeding is either vexatious or an abuse of process. It is, however, unnecessary to resolve those submissions. For present purposes it is sufficient to note that in the reasons for decision as published on 4 April 2008 it was then concluded that none of the grounds of appeal sought to be pursued in this Court had " any real prospects of success ": [2008] FCA 417 at [26] . There is no reason to revisit that conclusion or vary it -- even if it were permissible to do so. 9 It is considered that the proceeding should now be dismissed pursuant to O 28, r 5(1)(b) of the Federal Court Rules . There has been non-compliance with the orders requiring security for costs and there is no prospect that such security could be provided if further time were permitted.


case_text: Orders were previously made in this proceeding on 4 April 2008 requiring the Appellant to provide security for costs: Lawrance v Commonwealth [2008] FCA 417. Those orders required security to be provided at two stages -- the first stage required 50% of the security to be provided within 21 days of those orders being made; the second stage required the balance of the security to be provided 21 days prior to the hearing of the appeal to this Court from a decision of the Federal Magistrates Court: Lawrance v Commonwealth (No 5) [2007] FMCA 1934.


case_text: In the absence of any change in the position of the Appellant since the time when the orders were first made, and in the absence of any prospect that security could be provided, it is considered that the Respondents are entitled to the certainty that they seek. As also observed by Hely J in Truth about Motorways : [28] It is a serious thing to terminate proceedings when there has not been a hearing on the merits, however, there is a public interest in the conduct of judicial proceedings in conformity with orders made by the Court... See also: Mary River Cattle Station Pty Ltd v Northern Territory [2002] NTSC 11 at [26] per Martin CJ.


case_title: Microbio Resources Inc v Betatene Ltd (Unreported, FCA, Black CJ, Sheppard and Einfeld JJ, 8 October 1993)


case_title: Sluggett v Human Rights & Equal Opportunity Commission [2002] FCA 1060