case_text: In the circumstances the Tribunal was required to determine whether low caste Hindus (ie Dalits) were capable of constituting a social group for the purposes of the Convention Relating to the Status of Refugees 1951 as amended by the Protocol Relating to the Status of Refugees 1967 (together 'the Convention'). If it answered that question affirmatively, it was required to determine whether the appellant was a member of that social group. If it answered that question affirmatively, it had then to deal with the questions whether the appellant feared persecution if he returned to India, whether his fear was well-founded and whether his fear was by reason of his membership of the social group constituted by Dalits ( Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 ; (2003) 197 ALR 389 per Gummow and Callinan JJ, with whom Hayne J agreed, at [26]). 52 The reasons for decision of the Tribunal reveal that it did not follow the above process of reasoning. Rather it either accepted or assumed that the appellant was a member of a social group for the purposes of the Convention. It seems that the social group that it had in mind was either constituted by, or included in its membership, both Sindhis and Dalits as it proceeded on the basis that it was essentially the same to be a Sindhi and a Dalit. It then had regard to information concerning the treatment in India of members of the Sindhi community, including information which suggested that, generally speaking, the Sindhi community in Maharashtra State is not ill-treated. It thereafter noted, and apparently accepted, an Amnesty International report that Dalits 'are routinely subjected to beatings, mutilation, murder, rape, and destruction of property' . It then concluded, consistently with its assumption that it was essentially the same to be a Sindhi and a Dalit, that it was: 'not satisfied that being low caste (Dalit and Sindhi), without more, means that there is a real chance of the [appellant] being persecuted as contemplated by the Convention, by the Shiv Sena, and/or the Indian authorities, and/or upper caste people.' 53 In my view, it is plain that because the Tribunal proceeded on the basis that it was essentially the same to be a Sindhi and a Dalit, it took into account material concerning the treatment in India of Sindhis when determining whether the appellant had a well-founded fear of persecution for reason of his membership of a particular social group. In doing so the Tribunal misunderstood and failed properly to deal with the claim advanced by the appellant. The social group of which the appellant is to be understood to have claimed membership was constituted by Dalits only; it did not include all Sindhis. Dalits and Sindhis are not the same and, as I have concluded above, the appellant did not assert that they are the same. In proceeding as it did the Tribunal constructively failed to exercise its jurisdiction because it did not address the claim advanced by the appellant ( Dranichnikov 197 ALR at [25]-[32]). 54 In retrospect it can be seen that both the Minister and the appellant could have provided greater assistance to the Federal Magistrate. His Honour would almost certainly have benefited from evidence of the kind now contained in the affidavit of Professor Jayaraman. However, more informal ways of clarifying the meaning of the terms Sindhi and Dalit were open to the parties. 55 For the reasons outlined above his Honour erred in concluding that the Tribunal addressed the claim advanced by the appellant. The first ground of appeal is made out. 56 The second ground of appeal is properly understood, it seems to me, as an alternate ground to the first ground of appeal. On the assumption, which is contrary to my finding, that the Tribunal did recognise that being a Sindhi and being a Dalit was not essentially the same, it made no finding as to why, having regard to the Amnesty International report which it apparently accepted, the appellant did not have a well-founded fear of persecution as a member of the social group constituted by Dalits. The explanation for its apparent failure to apply the real chance test in this regard is to be found, in my view, in its failure to distinguish between the two social groups, Sindhis and Dalits. 57 The appeal will be allowed and the orders made by the Federal Magistrates Court on 18 January 2007 set aside. In lieu thereof it will be ordered that orders issue in the nature of certiorari quashing the decision of the Tribunal and in the nature of mandamus requiring the Tribunal to determine the appellant's application for review of the decision of the delegate of the Minister according to law. The first respondent will be ordered to pay the appellant's costs in the Federal Magistrates Court and on appeal. I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson. Associate: Dated: 8 June 2007 Counsel for the Appellant: Mr T Silva Solicitor for the Appellant: Silva Solicitors Counsel for the First Respondent: Ms SA Sirtes Solicitor for the First Respondent: Clayton Utz Counsel for the Second Respondent: The Second Respondent filed a submitting appearance Date of Hearing: 2 May 2007 and 28 May 2007 Date of Judgment: 8 June 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/854.html


case_outcome: cited

case_text: Order 52 r 36 of the Federal Court Rules , subject to any dispensation from compliance (see O 1 r 8), governs the practice of the Court where further evidence is sought to be adduced on appeal. Ordinarily the Court requires an application to adduce further evidence on appeal to be supported by an affidavit that explains why the further evidence was not adduced below ( Fodare Pty Limited v Official Trustee in Bankruptcy [2000] FCA 1721). However, I accept the submissions of the appellant's legal representative that the circumstances in which this Court, in the exercise of its appellate jurisdiction, may receive evidence not adduced below are to be determined as a matter of statutory construction rather than by reference to common law principles ( CDJ v VAJ [1998] HCA 76 ; (1998) 197 CLR 172 per McHugh, Gummow and Callinan JJ esp at [100]-[102]). The interests of justice must always be the paramount consideration ( State of Queensland v JL Holdings Pty Ltd [1997] HCA 1 ; (1997) 189 CLR 146 at 155).


case_text: An appeal to this Court from the Federal Magistrates Court is an appeal by way of rehearing ( MZWVH v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 1016). Section 27 of the Federal Court of Australia Act 1976 (Cth) provides that, in an appeal, the Court should have regard to the evidence given in the proceeding out of which the appeal arose and has power, in its discretion, to receive further evidence.


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


case_title: ASIC v Rich & Rich (2004) Fam LR 31,667

case_text: Family Court may set aside financial agreements in the circumstances provided by s 90K of the Family Law Act . Section 90K was inserted by the Family Law Amendment Act 2000 (Cth) following the decision of the Family Court in ASIC v Rich & Rich (2004) Fam LR 31,667 where O'Ryan J found that the Family Court had no jurisdiction to set aside a binding financial agreement at the request of a third p arty. So far as relevant, s 90K provides: Circumstances in which court may set aside a financial agreement or termination agreement (1) A court may make an order setting aside a financial agreement or a termination agreement if, and only if, the court is satisfied that: ... (aa) a party to the agreement entered into the agreement: (i) for the purpose, or for purposes that included the purpose, of defrauding or defeating a creditor or creditors of the party; or (ii) with reckless disregard of the interests of a creditor or creditors of the party; or I note that, so far as is relevant, the intentions required to be established in the context of s 90K of the Family Law Act and s 121 of the Bankruptcy Act are different. Section 90K of the Family Law Act allows the Court to set aside a financial agreement if a party to the agreement entered the agreement for the purpose or for purposes that included the purpose of defrauding or defeating a creditor or creditors of the party , whereas s 121 of the Bankruptcy Act provides that a transfer is void as against a trustee in bankruptcy if, inter alia , entered with the main purpose of preventing the transferred property from becoming divisible among the transferor's creditors or hindering or delaying the process of making property available for division among the transferor's creditors. To that extent the provisions of the Family Law Act contemplate broader grounds for intervention than the provisions of s 121 of the Bankruptcy Act . In these proceedings the applicant's case as pleaded in his statement of claim falls squarely within the terms of s 121(1)(b) of the Bankruptcy Act , namely that the main purpose of the bankrupt in making the transfer was to prevent the Carrara property from becoming divisible among his creditors and to hinder or delay the process of making the Carrara property available for division among his creditors. Bankruptcy and Family Law Legislation Amendment Act 2005 (Cth) In 2005 both the Bankruptcy Act and the Family Law Act were amended by the Bankruptcy and Family Law Legislation Amendment Act 2005 (Cth).


case_text: in relation to proposed Order 2 of the applicant's notice of motion I am persuaded by the respondent's submissions that she should be entitled an opportunity to replead her Defence in light of amendments to the applicant's statement of claim. I am not prepared to make an order as sought by the applicant in terms of Order 2 of its notice of motion. While at the hearing Mr McQuade for the applicant urged the Court that any amendment to the Defence should be very limited, nonetheless the function of pleadings is to state, with sufficient clarity, the case that must be met by the other party. In this way, pleadings serve to ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her and to define the issues for decision: Banque Commerciale SA En Liquidation v Akhil Holdings Ltd [1990] HCA 11 ; (1990) 169 CLR 279 at 286 per Mason CJ and Gaudron J (cf Dawson J at 296, Toohey J at 302-303). In my view it is appropriate to allow the respondents a reasonable time to serve a draft amended Defence, and to set a date for hearing submissions as to whether leave ought be granted for the Defence in a repleaded form. Any issues the applicant has in relation to the nature of any amendments to the Defence can be ventilated at that hearing. I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate: Dated: 23 July 2009 Counsel for the Applicant: Mr PP McQuade Solicitor for the Applicant: James Conomos Lawyers Counsel for the Respondent: Mr J Griffin QC and Mr F Forde Solicitor for the Respondent: Michael Sing Lawyers Date of Hearing: 31 March 2009 Date of Judgment: 23 July 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/778.html


case_text: observed by the majority of the High Court in Williams v Spautz [1992] HCA 34 ; (1992) 174 CLR 509 at 518, it is well established that Australian superior courts have inherent jurisdiction to stay proceedings which are an abuse of process. So, a superior court has power to prevent an abuse of process when process is predominantly used as a means of obtaining an advantage for which the proceedings were not intended ( Williams v Spautz [1992] HCA 34 ; (1992) 174 CLR 509 at 521-522, 529, Goldsmith v Sperrings Ltd (1977) 1 WLR 478 , Metall & Rohstoff AG v Donaldson Inc [1990] 1 QB 391). A manifestation of this principle can be seen in cases where a litigant, having been unsuccessful in respect of one application, seeks to bring substantially the same application in the same or another court ( Reichel v Magrath (1889) 14 App Cas 665 at 668-669, Williams v Hunt [1905] 1 KB 512 , Wilson v Commonwealth of Australia [1999] FCA 1308 at [11] - [12] ), Lindsey v Philip Morris Ltd [2004] FCA 797 , Coffey v Secretary, Department of Social Security [1999] FCA 375 ; (1999) 86 FCR 434). Second, in my view a more accurate articulation of the respondent's claim in these interlocutory proceedings is that the Federal Court lacks jurisdiction to deal with the applicant's claims, allegedly because the correct forum for the claim of the applicant is the Family Court, and because the applicant should have commenced proceedings pursuant to s 90K of the Family Law Act in the Family Court. Clearly this Court has power to permanently stay or dismiss proceedings where the Court has no jurisdiction because of lack of power, absence of legislative grant of jurisdiction, or otherwise ( Rahman v Director-General Department of Education & Training [2005] NSWCA 285 , Ramsay v Accident Compensation Corporation [2007] NZCA 367 , Simundic v University of Newcastle [2007] FCA 676 , Mentyn v Westpac Banking Corporation [2003] FCA 1521 , Coffey v Secretary, Department of Social Security [1999] FCA 375 ; (1999) 86 FCR 434). A claim by a litigant that the court has no jurisdiction is however distinguishable from a claim that the litigation constitutes an abuse of process, unless of course the commencement of process for an improper purpose in the sense explained in Williams v Spautz [1992] HCA 34 ; (1992) 174 CLR 509 can also be identified. Absence of jurisdiction is commonly pleaded as an alternative to a claim for abuse of process. However even if I am wrong as to the basis of the respondent's claim in these interlocutory proceedings, the respondent has clearly contended that it was appropriate for the Court to permanently stay the substantive proceedings on the grounds that the proper course of the applicant in seeking to impugn the transfer of the Carrara property by Mr Jensen was to apply to the Family Court to have the entire financial agreement set aside pursuant to s 90K(1)(aa) of the Family Law Act . For reasons to which I now turn, I do not agree.


case_text: the courts do not easily reach this view as Dixon J observed in Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 at 91: A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process. I shall return to O 20 r 5 later in this judgment. Legislative developments with respect to bankruptcy and family law issues Both parties have made detailed submissions as to the operation of the Bankruptcy Act and the Family Law Act , including amending legislation. The difficulties which can arise where family law issues and bankruptcy issues interact have been the subject of numerous attempts at legislative resolution. These difficulties have consistently flowed from the uncertainty and hardship for either or both the creditors and non-bankrupt spouse arising from inconsistencies created between family law and bankruptcy law (cf para 9 Explanatory Memorandum, Bankruptcy and Family Law Legislation Amendment Bill 2004). Section 120 and section 121 of the Bankruptcy Act Section 120 and s 121 of the Bankruptcy Act both provide for certain types of transaction to be subsequently declared void as against a trustee in bankruptcy. Section 120 applies to transfers occurring within five years prior to the commencement of bankruptcy at an undervalue. Section 121 focuses on the intention with which the transferor effected the transaction, and is not subject to time limits. So far as relevant, s 120 of the Bankruptcy Act provides: Undervalued transactions Transfers that are void against trustee (1) A transfer of property by a person who later becomes a bankrupt (the transferor ) to another person (the transferee ) is void against the trustee in the transferor's bankruptcy if: (a) the transfer took place in the period beginning 5 years before the commencement of the bankruptcy and ending on the date of the bankruptcy; and (b) the transferee gave no consideration for the transfer or gave consideration of less value than the market value of the property. ... Exemptions (2) Subsection (1) does not apply to: (a) a payment of tax payable under a law of the Commonwealth or of a State or Territory; or (b) a transfer to meet all or part of a liability under a maintenance agreement or a maintenance order; or (c) a transfer of property under a debt agreement; or (d) a transfer of property if the transfer is of a kind described in the regulations.


case_text: order for the Court to stay a proceeding on the basis of abuse of process the Court must be satisfied that the case is: "so obviously untenable that it cannot possibly succeed"; "manifestly groundless"; "so manifestly faulty that it does not admit of argument"; "discloses a case which the Court is satisfied cannot succeed"; "under no possibility can there be a good cause of action"; [or] "be manifest that to allow them" (the pleadings) "to stand would involve useless expense". (Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 at 129)


case_text: observed by the majority of the High Court in Williams v Spautz [1992] HCA 34 ; (1992) 174 CLR 509 at 518, it is well established that Australian superior courts have inherent jurisdiction to stay proceedings which are an abuse of process. So, a superior court has power to prevent an abuse of process when process is predominantly used as a means of obtaining an advantage for which the proceedings were not intended ( Williams v Spautz [1992] HCA 34 ; (1992) 174 CLR 509 at 521-522, 529, Goldsmith v Sperrings Ltd (1977) 1 WLR 478 , Metall & Rohstoff AG v Donaldson Inc [1990] 1 QB 391). A manifestation of this principle can be seen in cases where a litigant, having been unsuccessful in respect of one application, seeks to bring substantially the same application in the same or another court ( Reichel v Magrath (1889) 14 App Cas 665 at 668-669, Williams v Hunt [1905] 1 KB 512 , Wilson v Commonwealth of Australia [1999] FCA 1308 at [11] - [12] ), Lindsey v Philip Morris Ltd [2004] FCA 797 , Coffey v Secretary, Department of Social Security [1999] FCA 375 ; (1999) 86 FCR 434).


case_title: Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2006] FCAFC 116


case_title: Lindsey v Philip Morris Ltd [2004] FCA 797


case_text: summary the case of the respondent is as follows: The Carrara property was jointly owned by Mr Jensen and the respondent. The applicant makes no challenge to the financial arrangement of 22 January 2002, nor is it pleaded that the financial agreement was not one to which Part VIIIA of the Family Law Act applies, or that the agreement failed to comply with requirements of the Family Law Act . In the absence of such a challenge it is not open to the applicant to have the transfer effected by Mr Jensen of his former half interest in the property declared void. By force of the financial agreement the respondent became equitable owner of the land. Under the Family Law Act : financial agreements can only be set aside by the Family Court under s 90K ; financial agreements can only be terminated by the parties pursuant to s 90J ; financial agreements have a special status by reason of the provisions of the Family Law Act . In Official Trustee in Bankruptcy v Mateo [2003] FCAFC 26 ; (2003) 127 FCR 217 the Full Court of the Federal Court held that the effect of consent orders of the Family Court made under s 81 of the Family Law Act pursuant to which the Family Court ordered that the husband transfer his half interest in jointly-owned land to the wife was that the Family Court orders themselves vested in the wife all of the husband's equitable estate in the land. The Full Court also held that the transfer by a person having a bare legal title perfected the title of the equitable owner of the property, was not a transfer of property within the meaning of s 121 of the Bankruptcy Act . The application by the Official Trustee should have been to the Family Court to set aside the orders under s 79A of the Family Law Act . In these proceedings the critical divesting event with respect to the Carrara property was the financial agreement, which resulted in the equitable estate in the Carrara property passing to the respondent in January 2002. The actual transfer, executed by Mr Jensen on 28 August 2002, was of no significance because Mr Jensen had already divested himself of his interest in the property pursuant to the financial agreement. If the matter is dealt with by the Family Court, both the interests of the respondent and the creditors can be brought into account. The present proceedings are calculated to bring only the interests of creditors into play. If the transfer to the respondent of the interest in the matrimonial home is to be set aside, the whole matter will have to be reviewed, and that review can only occur in the Family Court. To hold otherwise runs contrary to Mateo . In Macks v Edge [2006] FCA 1077 ; (2006) 156 FCR 302 Besanko J declined to transfer proceedings by a trustee under s 120 and s 121 of the Bankruptcy Act to the Family Court but primarily because of the lateness of the application. His Honour reached no conclusion as to any of the legal issues involved. The decision of Ryan J in Rambaldi (as Trustee of Bankrupt Estate of Volkov) v Volkov [2008] FCA 1957 is authority for the proposition that if a trustee in bankruptcy seeks to utilise s 121 of the Bankruptcy Act in the context of any existing financial agreement, the trustee needs to confront the financial agreement itself. The Bankruptcy and Family Law Legislation Amendment Act 2005 (Cth) amended the term "maintenance agreement" in the Bankruptcy Act to delete the term "financial agreement". This simply means that the automatic exemption of financial agreements from the operation of s 120 of the Bankruptcy Act was removed it does not have the effect of declaring that the fact that a transaction occurred in pursuance of a financial agreement ceases to have any relevance. Financial agreements continue to retain all the protection that the Family Law Act expressly or implicitly provides. The amendment does not envisage the circumvention of s 90K of the Family Law Act by applications made with respect to "trust transfers". In any event, the exemption in favour of financial agreements only ever applied to claims made with respect to s 120 it never extended to claims under s 121. The applicant's case The facts in Macks v Edge [2006] FCA 1077 ; (2006) 156 FCR 302 were more similar to those in contention before me. In that case a husband and wife entered an oral "separation agreement" by which the husband agreed to transfer his interest in property to the wife. The agreement was entered in or about September 2002. On 22 May 2003 the parties entered a written financial agreement giving effect to the oral agreement. A sequestration order against the estate of the husband was made on 31 July 2003. The trustee in bankruptcy commenced an action in the Federal Court to have the transfers set aside on the basis that no or inadequate consideration was given by the wife for the transfer of the properties, and that the transfers were void within the provisions of s 120 or s 121 of the Bankruptcy Act . The wife issued proceedings in the Family Court against the trustee in bankruptcy and the husband seeking certain orders under the Family Law Act , including a declaration that the financial agreement and transfers were valid and binding, or, in the alternative, if the transfers were void, an order pursuant to s 90K(1)(b) and (c) of the Family Law Act terminating the financial agreement and such order as was just and equitable pursuant to s 90K(3) preserving the rights of the wife in relation to the property the subject of the terminated binding financial agreement. Besanko J considered in some detail historical legislative developments, including amendments to s 79 of the Family Law Act , the accretion of jurisdiction to the Family Court in relation to bankruptcy matters in terms of s 35 of the Bankruptcy Act , and the enactment of s 35A of the Bankruptcy Act which empowered the Federal Court to transfer matters to the Family Court. However as his Honour continued: At the same time, there is nothing to suggest that this Court does not have jurisdiction over the trustee's claim and I reject the submission that the trustee has issued proceedings in the wrong court. The Family Court has jurisdiction to alter the trustee's rights with respect to vested bankruptcy property, but this Court retains jurisdiction to determine the prior questions of whether the transfers are void because they fall within the provisions of s 120 or s 121. ... It follows from what I have said that the first issue in proceedings between the Trustee and Mrs Edge is whether the trustee's claim under the provisions of the Bankruptcy Act ought to be upheld. If the trustee is successful then Mrs Edge may make an application against the trustee under s 79(1) of the Family Law Act , with respect to the freehold property, leasehold property and speedboat, seeking an order "altering the interests of the bankruptcy trustee in the vested bankruptcy property". It seems to me that that is the substance of any proceedings she may bring in the Family Court. Her claim is in a sense a contingent claim in that it only becomes relevant if the trustee's claim is successful. If the trustee is unsuccessful then Mrs Edge's claim falls away because there is no relevant vested bankruptcy property. Should the trustee be successful, the Family Court has the power to alter the interests of the trustee in the vested bankruptcy property. In those circumstances, whether the order for transfer should be made comes down to whether it is appropriate in the exercise of the discretion to make the order for transfer. This Court can hear and determine the trustee's claim, but it cannot hear and determine Mrs Edge's claim should it become necessary to do so. If I make the order for transfer, the Family Court can hear and determine both claims. That is a powerful reason for making an order for transfer. On the other hand, the proceedings in this Court are nearly ready for hearing and, so far as I can see, involve some fairly concise issues. The hearing of the trustee's claim should not take very long. If the trustee's claim is unsuccessful, there will be no need for Mrs Edge to pursue the claim against the trustee in the Family Court. On balance, I am of the opinion that the proceedings should not be transferred to the Family Court. (at 311-312) I do not accept Mr Griffin QC's interpretation of the decision in Mateo as submitted namely that if the financial agreement and the transfer are separated, the second part of the transaction is not a "transaction" within the meaning of s 120 and s 121 of the Bankruptcy Act because the relevant estate has already been transferred by force of the financial agreement (cf TS p 48 ll 27-38). Rather, as submitted by Mr McQuade, I consider the correct approach to be that in considering an application under s 120 and s 121 of the Bankruptcy Act , the Court considers the creation or transfer of the interest which is sought to be avoided, not the provision in the legal document (or other mechanism) which has created it. To illustrate this principle I need look no further than Rambaldi [2008] FCA 1957. The respondent in these proceedings claimed that Rambaldi [2008] FCA 1957 is authority that an applicant seeking to set aside a transaction pursuant to a financial agreement needs to "confront the financial agreement itself". However the clear outcome in Rambaldi [2008] FCA 1957 was that the Court set aside the purported equitable interest in the relevant property sought to be created by the financial agreement, not the financial agreement itself (cf [2008] FCA 1957 para [47]). While the terms of the financial agreement in Rambaldi [2008] FCA 1957 were clearly critical to the questions whether the relevant provisions of the Bankruptcy Act were satisfied and accordingly whether the interest of the non-bankrupt spouse should be set aside, the orders of the Court in Rambaldi [2008] FCA 1957 with respect to the financial agreement were limited to the validity of the creation of an interest in land purportedly created by the financial agreement. This outcome did not require an order that the financial agreement be avoided pursuant to s 120 or s 121. I consider that similar principles apply in the case before me. Whether the "transfer" in this case was the creation of an equitable interest in the Carrara property in favour of the respondent, or the actual transfer effected by the form 1 (an issue I need not resolve for the purposes of this notice of motion) the transfer can nonetheless be the subject of challenge pursuant to s 120 or s 121 of the Bankruptcy Act without the applicant being required to make application to set aside the financial agreement executed by Mr Jensen and the respondent. I consider that this approach is consistent with the findings of this Court in Macks v Edge [2006] FCA 1077 ; (2006) 156 FCR 302 and Rambaldi [2008] FCA 1957 , as well as the Full Court in Mateo [2003] FCAFC 26 ; (2003) 127 FCR 217. In summary, I do not take the view that the Federal Court, in which the applicant commenced substantive proceedings, is the "wrong court" in this case, for the same reasons as those given by Besanko J in Macks v Edge namely that the Family Court has jurisdiction to alter the trustee's rights with respect to vested bankruptcy property, but this Court retains jurisdiction to determine the prior question of whether the transfer pursuant to the financial agreement was void because it falls within the provisions of s 120 or s 121 of the Bankruptcy Act ( Macks v Edge [2006] FCA 1077 ; (2006) 156 FCR 302 at 312). This approach is echoed in observations of Wilcox J in Mateo [2003] FCAFC 26 ; (2003) 127 FCR 217 (at 237-238). It is not necessary for the applicant to apply to the Family Court to have the financial agreement between Mr Jensen and the respondent terminated as a necessary element of an application to have the transfer of the Carrara property set aside pursuant to s 120 and s 121 of the Bankruptcy Act .


case_text: first instance, Tamberlin J set aside the notice ( Mateo v Official Trustee in Bankruptcy [2002] FCA 344 ; (2002) 117 FCR 179). For the purposes of s 120 , his Honour held that the "transfer" in this case consisted of the whole transaction ranging from the signing of the consent orders through to the completion of the transfer of the interest by the husband. Further, full faith and credit must be given to the orders of the Family Court unless they are set aside. In relation to s 121 , the main purpose of the Family Court orders was to resolve outstanding matrimonial issues. The respondent points to the decision of the Full Court in Mateo [2003] FCAFC 26 ; (2003) 127 FCR 217 as authority for the proposition that, in the context of an application by a trustee in bankruptcy under s 121 , the "transfer" consists of the whole transaction ranging from the signing of the consent orders (or in this case, the execution of the financial agreement) through to the completion of the transfer of the interest by the husband, and that accordingly it is not possible for this Court to make a determination as to the transfer of the Carrara property without disturbing the financial agreement as a whole. However to the extent that this was the finding of the judge at first instance in Mateo (see in particular Mateo v Official Trustee in Bankruptcy [2002] FCA 344 ; (2002) 117 FCR 179 at 186) the Full Court were by no means supportive of this proposition (see for example Wilcox J at 235, Branson J at 249). Indeed as Wilcox J observed at 234: [Tamberlin J at first instance took the view that] it was artificial to "isolate one individual component of the transaction as in itself comprising the transfer", rather than to "look at the overall transaction which has been implemented". He found support for this approach in Silvera v Savic .


case_text: in my view a more accurate articulation of the respondent's claim in these interlocutory proceedings is that the Federal Court lacks jurisdiction to deal with the applicant's claims, allegedly because the correct forum for the claim of the applicant is the Family Court, and because the applicant should have commenced proceedings pursuant to s 90K of the Family Law Act in the Family Court. Clearly this Court has power to permanently stay or dismiss proceedings where the Court has no jurisdiction because of lack of power, absence of legislative grant of jurisdiction, or otherwise ( Rahman v Director-General Department of Education & Training [2005] NSWCA 285 , Ramsay v Accident Compensation Corporation [2007] NZCA 367 , Simundic v University of Newcastle [2007] FCA 676 , Mentyn v Westpac Banking Corporation [2003] FCA 1521 , Coffey v Secretary, Department of Social Security [1999] FCA 375 ; (1999) 86 FCR 434). A claim by a litigant that the court has no jurisdiction is however distinguishable from a claim that the litigation constitutes an abuse of process, unless of course the commencement of process for an improper purpose in the sense explained in Williams v Spautz [1992] HCA 34 ; (1992) 174 CLR 509 can also be identified. Absence of jurisdiction is commonly pleaded as an alternative to a claim for abuse of process. However even if I am wrong as to the basis of the respondent's claim in these interlocutory proceedings, the respondent has clearly contended that it was appropriate for the Court to permanently stay the substantive proceedings on the grounds that the proper course of the applicant in seeking to impugn the transfer of the Carrara property by Mr Jensen was to apply to the Family Court to have the entire financial agreement set aside pursuant to s 90K(1)(aa) of the Family Law Act . For reasons to which I now turn, I do not agree.


case_title: Metall & Rohstoff AG v Donaldson Inc [1990] 1 QB 391


case_title: Oceanic Sun Line Special Shipping Company v Fay [1988] HCA 32 ; (1988) 165 CLR 197


case_text: recently in Rambaldi (as Trustee of Bankrupt Estate of Volkov) v Volkov [2008] FCA 1957 a trustee in bankruptcy of the estate of a husband sought orders in the Federal Court setting aside the transfer of property from the husband to the wife prior to the husband's bankruptcy. The husband and wife had entered into a financial agreement which acknowledged the desire of the parties to make provisions to "recognise existing equitable interests" in those real properties. The Court found that the husband had held certain property on a constructive trust for the sole benefit of the wife prior to execution of the financial agreement. In relation to other property in relation to which the financial agreement purported to create and transfer to the wife an equitable interest, the Court considered the application of s 123(6) and s 121 of the Bankruptcy Act . Although Ryan J analysed the position prior to the 2005 amendments to both the Bankruptcy Act and the Family Law Act , for reasons I explain later in this judgment I consider that the reasoning in Rambaldi [2008] FCA 1957 in respect of the application of s 121 is useful in these proceedings. Specifically, his Honour found that: an equitable interest in the relevant property arose only following execution of the financial agreement between the parties pursuant to s 90C of the Family Law Act ; section 123(6) and s 121 of the Bankruptcy Act were relevant; the financial agreement, as a maintenance agreement, was prima facie entitled to the protection against invalidity afforded to it by s 123(6) of the Bankruptcy Act , however that protection was subject to s 121 of the Bankruptcy Act ; the financial agreement clearly effected a transfer, by a person who later became a bankrupt, of property to the non-bankrupt spouse. The main purpose of the bankrupt in entering into the financial agreement was to prevent the property becoming divisible among his creditors or to delay the process of making it available for division among his creditors; the non-bankrupt spouse provided no consideration for the transfer in the sense identified in Official Trustee v Lopatinsky [2003] FCAFC 109 ; (2003) 129 FCR 234 ; and the only consideration provided by the non-bankrupt spouse was the entry into the financial agreement, however because of the application of s 121(6) this was of no value for the purposes of s 121 of the Bankruptcy Act . Findings


case_text: summary the case of the respondent is as follows: The Carrara property was jointly owned by Mr Jensen and the respondent. The applicant makes no challenge to the financial arrangement of 22 January 2002, nor is it pleaded that the financial agreement was not one to which Part VIIIA of the Family Law Act applies, or that the agreement failed to comply with requirements of the Family Law Act . In the absence of such a challenge it is not open to the applicant to have the transfer effected by Mr Jensen of his former half interest in the property declared void. By force of the financial agreement the respondent became equitable owner of the land. Under the Family Law Act : financial agreements can only be set aside by the Family Court under s 90K ; financial agreements can only be terminated by the parties pursuant to s 90J ; financial agreements have a special status by reason of the provisions of the Family Law Act . In Official Trustee in Bankruptcy v Mateo [2003] FCAFC 26 ; (2003) 127 FCR 217 the Full Court of the Federal Court held that the effect of consent orders of the Family Court made under s 81 of the Family Law Act pursuant to which the Family Court ordered that the husband transfer his half interest in jointly-owned land to the wife was that the Family Court orders themselves vested in the wife all of the husband's equitable estate in the land. The Full Court also held that the transfer by a person having a bare legal title perfected the title of the equitable owner of the property, was not a transfer of property within the meaning of s 121 of the Bankruptcy Act . The application by the Official Trustee should have been to the Family Court to set aside the orders under s 79A of the Family Law Act . In these proceedings the critical divesting event with respect to the Carrara property was the financial agreement, which resulted in the equitable estate in the Carrara property passing to the respondent in January 2002. The actual transfer, executed by Mr Jensen on 28 August 2002, was of no significance because Mr Jensen had already divested himself of his interest in the property pursuant to the financial agreement. If the matter is dealt with by the Family Court, both the interests of the respondent and the creditors can be brought into account. The present proceedings are calculated to bring only the interests of creditors into play. If the transfer to the respondent of the interest in the matrimonial home is to be set aside, the whole matter will have to be reviewed, and that review can only occur in the Family Court. To hold otherwise runs contrary to Mateo . In Macks v Edge [2006] FCA 1077 ; (2006) 156 FCR 302 Besanko J declined to transfer proceedings by a trustee under s 120 and s 121 of the Bankruptcy Act to the Family Court but primarily because of the lateness of the application. His Honour reached no conclusion as to any of the legal issues involved. The decision of Ryan J in Rambaldi (as Trustee of Bankrupt Estate of Volkov) v Volkov [2008] FCA 1957 is authority for the proposition that if a trustee in bankruptcy seeks to utilise s 121 of the Bankruptcy Act in the context of any existing financial agreement, the trustee needs to confront the financial agreement itself. The Bankruptcy and Family Law Legislation Amendment Act 2005 (Cth) amended the term "maintenance agreement" in the Bankruptcy Act to delete the term "financial agreement". This simply means that the automatic exemption of financial agreements from the operation of s 120 of the Bankruptcy Act was removed it does not have the effect of declaring that the fact that a transaction occurred in pursuance of a financial agreement ceases to have any relevance. Financial agreements continue to retain all the protection that the Family Law Act expressly or implicitly provides. The amendment does not envisage the circumvention of s 90K of the Family Law Act by applications made with respect to "trust transfers". In any event, the exemption in favour of financial agreements only ever applied to claims made with respect to s 120 it never extended to claims under s 121. The applicant's case In Official Trustee in Bankruptcy v Mateo [2003] FCAFC 26 ; (2003) 127 FCR 217 a husband and wife jointly owned land which had been their matrimonial home. They separated and applied to the Family Court for consent orders in relation to that property. The Family Court ordered the husband to transfer to the wife his interest in the property, and the wife to pay money to the husband. The husband executed a transfer of his interest in the property to the wife, and later became bankrupt. The Official Trustee, as trustee in bankruptcy of the husband, issued a notice requiring the wife to pay the value of the husband's interest in the property or to transfer to the Official Trustee a half interest in the land, on the basis that the transfer by the husband was void as against the Official Trustee pursuant to both s 120 and s 121 of the Bankruptcy Act . The Full Court dismissed an appeal by the Official Trustee, although for reasons other than given by the trial judge. The judges acknowledged that, in addition to unsecured creditors, the wife and children of the bankrupt had an interest in his estate. However the key reason for the decision of the Full Court in Mateo [2003] FCAFC 26 ; (2003) 127 FCR 217 was the fact that orders had been made by the Family Court, and a transfer was made by the husband who eventually became bankrupt pursuant to such orders (Wilcox J at 235, Branson J at 248-249, Merkel J at 254). Accordingly, the transfer of the husband's interest in the matrimonial home had not been "by a person who later becomes a bankrupt" for the purposes of s 120 and s 121. No order was made either at first instance or on appeal for the matter to be transferred to the Family Court. The respondent points to the decision of the Full Court in Mateo [2003] FCAFC 26 ; (2003) 127 FCR 217 as authority for the proposition that, in the context of an application by a trustee in bankruptcy under s 121 , the "transfer" consists of the whole transaction ranging from the signing of the consent orders (or in this case, the execution of the financial agreement) through to the completion of the transfer of the interest by the husband, and that accordingly it is not possible for this Court to make a determination as to the transfer of the Carrara property without disturbing the financial agreement as a whole. However to the extent that this was the finding of the judge at first instance in Mateo (see in particular Mateo v Official Trustee in Bankruptcy [2002] FCA 344 ; (2002) 117 FCR 179 at 186) the Full Court were by no means supportive of this proposition (see for example Wilcox J at 235, Branson J at 249). Indeed as Wilcox J observed at 234: [Tamberlin J at first instance took the view that] it was artificial to "isolate one individual component of the transaction as in itself comprising the transfer", rather than to "look at the overall transaction which has been implemented". He found support for this approach in Silvera v Savic . I do not accept Mr Griffin QC's interpretation of the decision in Mateo as submitted namely that if the financial agreement and the transfer are separated, the second part of the transaction is not a "transaction" within the meaning of s 120 and s 121 of the Bankruptcy Act because the relevant estate has already been transferred by force of the financial agreement (cf TS p 48 ll 27-38). Rather, as submitted by Mr McQuade, I consider the correct approach to be that in considering an application under s 120 and s 121 of the Bankruptcy Act , the Court considers the creation or transfer of the interest which is sought to be avoided, not the provision in the legal document (or other mechanism) which has created it. To illustrate this principle I need look no further than Rambaldi [2008] FCA 1957. The respondent in these proceedings claimed that Rambaldi [2008] FCA 1957 is authority that an applicant seeking to set aside a transaction pursuant to a financial agreement needs to "confront the financial agreement itself". However the clear outcome in Rambaldi [2008] FCA 1957 was that the Court set aside the purported equitable interest in the relevant property sought to be created by the financial agreement, not the financial agreement itself (cf [2008] FCA 1957 para [47]). While the terms of the financial agreement in Rambaldi [2008] FCA 1957 were clearly critical to the questions whether the relevant provisions of the Bankruptcy Act were satisfied and accordingly whether the interest of the non-bankrupt spouse should be set aside, the orders of the Court in Rambaldi [2008] FCA 1957 with respect to the financial agreement were limited to the validity of the creation of an interest in land purportedly created by the financial agreement. This outcome did not require an order that the financial agreement be avoided pursuant to s 120 or s 121. I consider that similar principles apply in the case before me. Whether the "transfer" in this case was the creation of an equitable interest in the Carrara property in favour of the respondent, or the actual transfer effected by the form 1 (an issue I need not resolve for the purposes of this notice of motion) the transfer can nonetheless be the subject of challenge pursuant to s 120 or s 121 of the Bankruptcy Act without the applicant being required to make application to set aside the financial agreement executed by Mr Jensen and the respondent. I consider that this approach is consistent with the findings of this Court in Macks v Edge [2006] FCA 1077 ; (2006) 156 FCR 302 and Rambaldi [2008] FCA 1957 , as well as the Full Court in Mateo [2003] FCAFC 26 ; (2003) 127 FCR 217. In any event, as I have already observed, the key principle in my view emerging from the decision in Mateo [2003] FCAFC 26 ; (2003) 127 FCR 217 is that where property is transferred pursuant to orders of the Family Court and accordingly, the transfer of property is not "a transfer of property by a person who later becomes a bankrupt" for the purposes of s 120 and s 121 of the Bankruptcy Act the appropriate remedy of a trustee in bankruptcy seeking to have those orders set aside is to make application to the Family Court for variation of those orders (per Wilcox J at 236, Branson J at 252, Merkel J at 258). The facts in Mateo [2003] FCAFC 26 ; (2003) 127 FCR 217 are clearly distinguishable from the case before me in these proceedings the Carrara property was not transferred pursuant to orders of the Family Court, but pursuant to a financial agreement under the Family Law Act (which is very different from orders made by a superior court). Further, in my view the current legislative framework applicable to financial agreements contemplates that a trustee in bankruptcy may make application pursuant to both s 120 and s 121 of the Bankruptcy Act in the Federal Court to set aside a transfer pursuant to a financial agreement executed by the parties. In relation to the trustee's application pursuant to s 120 of the Bankruptcy Act in the instant proceedings, it is clear that: The inference necessarily drawn as a result is that the legislature intended that a transaction pursuant to a financial agreement would not be protected in circumstances where subsequently a trustee in bankruptcy of a party to such an agreement seeks to have transactions set aside pursuant to s 120 of the Bankruptcy Act . This is notwithstanding the operation of s 90G of the Family Law Act , which provides that financial agreements are binding on the parties thereto without the necessity for an order of the Family Court. In summary, I do not take the view that the Federal Court, in which the applicant commenced substantive proceedings, is the "wrong court" in this case, for the same reasons as those given by Besanko J in Macks v Edge namely that the Family Court has jurisdiction to alter the trustee's rights with respect to vested bankruptcy property, but this Court retains jurisdiction to determine the prior question of whether the transfer pursuant to the financial agreement was void because it falls within the provisions of s 120 or s 121 of the Bankruptcy Act ( Macks v Edge [2006] FCA 1077 ; (2006) 156 FCR 302 at 312). This approach is echoed in observations of Wilcox J in Mateo [2003] FCAFC 26 ; (2003) 127 FCR 217 (at 237-238). It is not necessary for the applicant to apply to the Family Court to have the financial agreement between Mr Jensen and the respondent terminated as a necessary element of an application to have the transfer of the Carrara property set aside pursuant to s 120 and s 121 of the Bankruptcy Act .


case_title: Rahman v Director-General Department of Education & Training [2005] NSWCA 285


case_outcome: followed

case_text: summary the case of the respondent is as follows: The Carrara property was jointly owned by Mr Jensen and the respondent. The applicant makes no challenge to the financial arrangement of 22 January 2002, nor is it pleaded that the financial agreement was not one to which Part VIIIA of the Family Law Act applies, or that the agreement failed to comply with requirements of the Family Law Act . In the absence of such a challenge it is not open to the applicant to have the transfer effected by Mr Jensen of his former half interest in the property declared void. By force of the financial agreement the respondent became equitable owner of the land. Under the Family Law Act : financial agreements can only be set aside by the Family Court under s 90K ; financial agreements can only be terminated by the parties pursuant to s 90J ; financial agreements have a special status by reason of the provisions of the Family Law Act . In Official Trustee in Bankruptcy v Mateo [2003] FCAFC 26 ; (2003) 127 FCR 217 the Full Court of the Federal Court held that the effect of consent orders of the Family Court made under s 81 of the Family Law Act pursuant to which the Family Court ordered that the husband transfer his half interest in jointly-owned land to the wife was that the Family Court orders themselves vested in the wife all of the husband's equitable estate in the land. The Full Court also held that the transfer by a person having a bare legal title perfected the title of the equitable owner of the property, was not a transfer of property within the meaning of s 121 of the Bankruptcy Act . The application by the Official Trustee should have been to the Family Court to set aside the orders under s 79A of the Family Law Act . In these proceedings the critical divesting event with respect to the Carrara property was the financial agreement, which resulted in the equitable estate in the Carrara property passing to the respondent in January 2002. The actual transfer, executed by Mr Jensen on 28 August 2002, was of no significance because Mr Jensen had already divested himself of his interest in the property pursuant to the financial agreement. If the matter is dealt with by the Family Court, both the interests of the respondent and the creditors can be brought into account. The present proceedings are calculated to bring only the interests of creditors into play. If the transfer to the respondent of the interest in the matrimonial home is to be set aside, the whole matter will have to be reviewed, and that review can only occur in the Family Court. To hold otherwise runs contrary to Mateo . In Macks v Edge [2006] FCA 1077 ; (2006) 156 FCR 302 Besanko J declined to transfer proceedings by a trustee under s 120 and s 121 of the Bankruptcy Act to the Family Court but primarily because of the lateness of the application. His Honour reached no conclusion as to any of the legal issues involved. The decision of Ryan J in Rambaldi (as Trustee of Bankrupt Estate of Volkov) v Volkov [2008] FCA 1957 is authority for the proposition that if a trustee in bankruptcy seeks to utilise s 121 of the Bankruptcy Act in the context of any existing financial agreement, the trustee needs to confront the financial agreement itself. The Bankruptcy and Family Law Legislation Amendment Act 2005 (Cth) amended the term "maintenance agreement" in the Bankruptcy Act to delete the term "financial agreement". This simply means that the automatic exemption of financial agreements from the operation of s 120 of the Bankruptcy Act was removed it does not have the effect of declaring that the fact that a transaction occurred in pursuance of a financial agreement ceases to have any relevance. Financial agreements continue to retain all the protection that the Family Law Act expressly or implicitly provides. The amendment does not envisage the circumvention of s 90K of the Family Law Act by applications made with respect to "trust transfers". In any event, the exemption in favour of financial agreements only ever applied to claims made with respect to s 120 it never extended to claims under s 121. The applicant's case More recently in Rambaldi (as Trustee of Bankrupt Estate of Volkov) v Volkov [2008] FCA 1957 a trustee in bankruptcy of the estate of a husband sought orders in the Federal Court setting aside the transfer of property from the husband to the wife prior to the husband's bankruptcy. The husband and wife had entered into a financial agreement which acknowledged the desire of the parties to make provisions to "recognise existing equitable interests" in those real properties. The Court found that the husband had held certain property on a constructive trust for the sole benefit of the wife prior to execution of the financial agreement. In relation to other property in relation to which the financial agreement purported to create and transfer to the wife an equitable interest, the Court considered the application of s 123(6) and s 121 of the Bankruptcy Act . Although Ryan J analysed the position prior to the 2005 amendments to both the Bankruptcy Act and the Family Law Act , for reasons I explain later in this judgment I consider that the reasoning in Rambaldi [2008] FCA 1957 in respect of the application of s 121 is useful in these proceedings. Specifically, his Honour found that: an equitable interest in the relevant property arose only following execution of the financial agreement between the parties pursuant to s 90C of the Family Law Act ; section 123(6) and s 121 of the Bankruptcy Act were relevant; the financial agreement, as a maintenance agreement, was prima facie entitled to the protection against invalidity afforded to it by s 123(6) of the Bankruptcy Act , however that protection was subject to s 121 of the Bankruptcy Act ; the financial agreement clearly effected a transfer, by a person who later became a bankrupt, of property to the non-bankrupt spouse. The main purpose of the bankrupt in entering into the financial agreement was to prevent the property becoming divisible among his creditors or to delay the process of making it available for division among his creditors; the non-bankrupt spouse provided no consideration for the transfer in the sense identified in Official Trustee v Lopatinsky [2003] FCAFC 109 ; (2003) 129 FCR 234 ; and the only consideration provided by the non-bankrupt spouse was the entry into the financial agreement, however because of the application of s 121(6) this was of no value for the purposes of s 121 of the Bankruptcy Act . Findings I do not accept Mr Griffin QC's interpretation of the decision in Mateo as submitted namely that if the financial agreement and the transfer are separated, the second part of the transaction is not a "transaction" within the meaning of s 120 and s 121 of the Bankruptcy Act because the relevant estate has already been transferred by force of the financial agreement (cf TS p 48 ll 27-38). Rather, as submitted by Mr McQuade, I consider the correct approach to be that in considering an application under s 120 and s 121 of the Bankruptcy Act , the Court considers the creation or transfer of the interest which is sought to be avoided, not the provision in the legal document (or other mechanism) which has created it. To illustrate this principle I need look no further than Rambaldi [2008] FCA 1957. The respondent in these proceedings claimed that Rambaldi [2008] FCA 1957 is authority that an applicant seeking to set aside a transaction pursuant to a financial agreement needs to "confront the financial agreement itself". However the clear outcome in Rambaldi [2008] FCA 1957 was that the Court set aside the purported equitable interest in the relevant property sought to be created by the financial agreement, not the financial agreement itself (cf [2008] FCA 1957 para [47]). While the terms of the financial agreement in Rambaldi [2008] FCA 1957 were clearly critical to the questions whether the relevant provisions of the Bankruptcy Act were satisfied and accordingly whether the interest of the non-bankrupt spouse should be set aside, the orders of the Court in Rambaldi [2008] FCA 1957 with respect to the financial agreement were limited to the validity of the creation of an interest in land purportedly created by the financial agreement. This outcome did not require an order that the financial agreement be avoided pursuant to s 120 or s 121. I consider that similar principles apply in the case before me. Whether the "transfer" in this case was the creation of an equitable interest in the Carrara property in favour of the respondent, or the actual transfer effected by the form 1 (an issue I need not resolve for the purposes of this notice of motion) the transfer can nonetheless be the subject of challenge pursuant to s 120 or s 121 of the Bankruptcy Act without the applicant being required to make application to set aside the financial agreement executed by Mr Jensen and the respondent. I consider that this approach is consistent with the findings of this Court in Macks v Edge [2006] FCA 1077 ; (2006) 156 FCR 302 and Rambaldi [2008] FCA 1957 , as well as the Full Court in Mateo [2003] FCAFC 26 ; (2003) 127 FCR 217. The position is less clear in relation to s 121 of the Bankruptcy Act . Unlike s 120 , s 121 makes no mention of maintenance agreements (or financial agreements). As I have already observed in this judgment, s 123(6) specifically provides that subject to s 121 , nothing in the Bankruptcy Act invalidates, inter alia , a transfer made by the debtor before bankruptcy pursuant to a maintenance agreement. It therefore follows that a transfer of property pursuant to a maintenance agreement by a debtor who subsequently became bankrupt could be challenged by a trustee in bankruptcy pursuant to s 121. As I have also noted in relation to s 120 , s 5 of the Bankruptcy Act now excludes financial agreements from the definition of maintenance agreement. This is a curious outcome, the reason for which is not clear. In my view a reasonable and logical explanation is that submitted by Mr McQuade for the applicant, namely that in the absence of a specific exemption for transactions undertaken pursuant to a financial agreement, such transactions are capable of being the subject of application by the trustee in bankruptcy of the transferor pursuant to s 121 of the Bankruptcy Act . Indeed this was the position prior to the 2005 amendments and in this respect there is (as I indicated earlier) particular relevance to the decision of Ryan J in Rambaldi [2008] FCA 1957 , where his Honour accepted that a trustee in bankruptcy could apply pursuant to s 121 of the Bankruptcy Act to set aside an interest in real property following a financial agreement between parties to a marriage. (Another possible explanation, namely that the effect of the 2005 amendments to the Bankruptcy Act resulted in financial agreements being excluded from the operation of s 121 , in my view is completely anomalous and has no merit.) Conclusion


case_title: Ramsay v Accident Compensation Corporation [2007] NZCA 367


case_title: Reichel v Magrath (1889) 14 App Cas 665


case_title: Simundic v University of Newcastle [2007] FCA 676


case_title: Williams v Hunt [1905] 1 KB 512


case_text: observed by the majority of the High Court in Williams v Spautz [1992] HCA 34 ; (1992) 174 CLR 509 at 518, it is well established that Australian superior courts have inherent jurisdiction to stay proceedings which are an abuse of process. So, a superior court has power to prevent an abuse of process when process is predominantly used as a means of obtaining an advantage for which the proceedings were not intended ( Williams v Spautz [1992] HCA 34 ; (1992) 174 CLR 509 at 521-522, 529, Goldsmith v Sperrings Ltd (1977) 1 WLR 478 , Metall & Rohstoff AG v Donaldson Inc [1990] 1 QB 391). A manifestation of this principle can be seen in cases where a litigant, having been unsuccessful in respect of one application, seeks to bring substantially the same application in the same or another court ( Reichel v Magrath (1889) 14 App Cas 665 at 668-669, Williams v Hunt [1905] 1 KB 512 , Wilson v Commonwealth of Australia [1999] FCA 1308 at [11] - [12] ), Lindsey v Philip Morris Ltd [2004] FCA 797 , Coffey v Secretary, Department of Social Security [1999] FCA 375 ; (1999) 86 FCR 434). First, in the circumstances of this case it is not clear to me how the commencement of proceedings by the applicant in the Federal Court is an "abuse of process". To paraphrase comments in Williams v Spautz [1992] HCA 34 ; (1992) 174 CLR 509 , it is not clear to me how the process was issued for some collateral advantage, nor how the proceedings are being used by the applicant to obtain some advantage for which they were not designed. In support of her claim of abuse of process, the respondent contends in summary that: In my view, the highest at which the respondent can place her case for abuse of process is in terms of Mr Griffin QC's contention that the applicant has sought to "stifle the respondent's legitimate claims" under the Family Law Act . However, no evidence to that effect has been produced, nor motive demonstrated to substantiate that claim other than the lawful entitlement of the applicant to pursue his rights under the Bankruptcy Act , and put a case based upon those rights to the Court. Second, in my view a more accurate articulation of the respondent's claim in these interlocutory proceedings is that the Federal Court lacks jurisdiction to deal with the applicant's claims, allegedly because the correct forum for the claim of the applicant is the Family Court, and because the applicant should have commenced proceedings pursuant to s 90K of the Family Law Act in the Family Court. Clearly this Court has power to permanently stay or dismiss proceedings where the Court has no jurisdiction because of lack of power, absence of legislative grant of jurisdiction, or otherwise ( Rahman v Director-General Department of Education & Training [2005] NSWCA 285 , Ramsay v Accident Compensation Corporation [2007] NZCA 367 , Simundic v University of Newcastle [2007] FCA 676 , Mentyn v Westpac Banking Corporation [2003] FCA 1521 , Coffey v Secretary, Department of Social Security [1999] FCA 375 ; (1999) 86 FCR 434). A claim by a litigant that the court has no jurisdiction is however distinguishable from a claim that the litigation constitutes an abuse of process, unless of course the commencement of process for an improper purpose in the sense explained in Williams v Spautz [1992] HCA 34 ; (1992) 174 CLR 509 can also be identified. Absence of jurisdiction is commonly pleaded as an alternative to a claim for abuse of process. However even if I am wrong as to the basis of the respondent's claim in these interlocutory proceedings, the respondent has clearly contended that it was appropriate for the Court to permanently stay the substantive proceedings on the grounds that the proper course of the applicant in seeking to impugn the transfer of the Carrara property by Mr Jensen was to apply to the Family Court to have the entire financial agreement set aside pursuant to s 90K(1)(aa) of the Family Law Act . For reasons to which I now turn, I do not agree.


case_title: Wilson v Commonwealth of Australia [1999] FCA 1380


case_text: of the imminence of the case it is best that I form and express a view as to this particular discovery application promptly. I will do so without reserving my decision. The power to order discovery in judicial review proceedings is clear. Over the years there has been a plethora of authority dealing with the circumstances under which it ought to be granted. Beyond saying that there is a certain restraint to be observed, in my opinion it is not necessary to encrust a judicial discretion to be exercised as a matter of practice and procedure with all sorts of judge-made rules. Some of the more modern authorities were referred to recently by Siopis J in Hayes Knight GTO Pty Limited v Australian Securities and Investments Commission [2005] FCA 1509 ; (2005) 147 FCR 468 and the comprehensive submissions of the parties have identified a number of other relevant authorities. The issue needs to be focused upon the basis for the judicial review application. In the present case, there are several broad grounds of attack. The first is the natural justice ground and it is said that there should be discovery related to cl 1(a) of the grounds of application. With all respect, I fail to see any basis for discovery in relation to the failure to afford natural justice as alleged. The relevant facts are clear and are within the knowledge of the applicants. The next broad ground is that the Australian Securities and Investments Commission (ASIC) failed to take relevant considerations into account. That involves three steps. One is the existence of the consideration; secondly, is the relevance of the consideration; and, thirdly, there is the failure to take it into account. The disclosure or discovery of the documents which I have indicated I will order should make clear those circumstances or considerations which were not taken into account or, at least, will do all that can be done to establish that proposition. It is tempting to leave any other aspect of the matter until after consideration has been given to those documents. However, it seems to me that when I go through the individual paragraphs which are relied upon, there is no proper basis for discovery on this issue at this point because of two fundamental factors. The first is that the applicants were the subject of the investigation in question and much of what is alleged is within their own personal knowledge. Secondly, they received communications from ASIC which would establish many of the factual matters, in particular, the letter to which attention was drawn yesterday which was exhibit LMS17 dated 23 February 2004. That has been added to this morning by ASIC indicating a number of facts which it is prepared to admit for the purposes of the proceedings. It may be doubtful whether those admissions carry the letter any further, but they certainly do give formality to that situation. I will run through the relevant paragraphs of the application. The first is the fact of ASIC's lengthy prior investigation into the conduct of the deed administrators and the affairs of the company. That seems to me to be clearly within the knowledge of the applicants supplemented by the communications from ASIC. The second is the examination of, amongst others, one of the deed administrators, and the mine manager in connection with that investigation. That again is a matter of which evidence has been given. The third is the fact that ASIC was assisted during its investigations and those examinations by, and reached its conclusions having regard to, both expert accounting evidence and independent legal advice from senior counsel. The source of that is the ASIC communication. The point has been made today that the content of the expert accounting advice and, in particular, the independent legal advice, may be relevant to the case. I do not prejudge that at the moment, but that has not been alleged in terms. It seems to me that if it is desired to persist in an application to inspect that material, then a particular application should be made for that purpose. The fourth, the fact that at the conclusion of the investigation and those examinations ASIC reached the view that the prospects of success were insufficient to justify ASIC commencing litigation against the deed administrator, is again established by the letter and admissions. The fifth, the fact of the dislocation, disruption, and expense already experienced and incurred, etc, is a matter within the knowledge of the applicants. To the extent that particulars 9, 10 and 11 are pressed, it seems to me that they are not matters which call for discovery.


case_title: Abebe v Commonwealth [1999] HCA 14 , 197 CLR 510

case_text: The Grounds of Appeal , it is considered, are but an impermissible attempt to review the factual merits of the decision reached by the Tribunal and should be rejected. A court conducting judicial review of an administrative decision must " beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision ": Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. The " weight " to be given to the evidence or particular pieces of information is for the Tribunal to assess: Abebe v Commonwealth [1999] HCA 14 at [197] , [2004] HCA 32 ; 197 CLR 510 at 580. Justice Kirby there observed, in the context of those proceedings: [197] It may be accepted that, as the applicant submitted, much of the Tribunal's statement of reasons focuses upon what the applicant said about her husband's arrest and whether what she had said on that subject was to be believed. But it did this in the context of assessing whether her claims that she had been persecuted in the past should be accepted. The Tribunal's reasoning does not reveal any failure to take account of relevant matters or any taking into account of irrelevant matters. In the end, the criticisms made by the applicant of the Tribunal's reasoning are criticisms of the factual findings it made and are criticisms that fasten upon the weight that the Tribunal attributed to various pieces of information that it had available for consideration. But what weight the Tribunal gave to those various pieces of information was for it to say. The task of making findings of fact, including findings as to credibility, is for the Tribunal alone: Kopalapillai v Minister for Immigration & Multicultural Affairs [1998] FCA 1126 ; (1998) 86 FCR 547 at 552, 559.


case_title: Kopalapillai v Minister for Immigration & Multicultural Affairs [1998] FCA 1126 ; (1998) 86 FCR 547


case_title: Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259


case_text: These findings of the Tribunal were based upon a consideration of the entirety of the evidence which was placed before it, including the evidence advanced by the now Appellant. Those findings of the Tribunal were open to it to be made. Clearly, the ultimate findings and reasons were based upon an assessment of the Appellant's credibility. The task of making those findings has been entrusted to the Tribunal, and not the Federal Magistrates Court or (more relevantly) to this Court on appeal: Nguyen v Migration Review Tribunal [2008] FCA 524 at [15] per Logan J. Findings of credibility are findings " par excellence " entrusted to the Tribunal: Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 at [67] , 168 ALR 407 at 423 per McHugh J; SZKQQ v Minister for Immigration & Citizenship [2008] FCA 242 at [21] per Middleton J; SZEOQ v Minister for Immigration & Citizenship [2008] FCA 257 at [27] per Lander J.


case_title: Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 , 168 ALR 407


case_title: SZEOQ v Minister for Immigration & Citizenship [2008] FCA 257


case_title: SZKQQ v Minister for Immigration & Citizenship [2008] FCA 242


case_text: On 4 February 2008 the Federal Magistrates Court dismissed an application seeking review of the Tribunal's decision: SZLHA v Minister for Immigration & Citizenship [2008] FMCA 143. The Appellant now appeals to this Court. The handwritten Notice of Appeal sets forth the Grounds of Appeal as follows (without alteration): 1. the Tribunal did not carefully consider the information which was in favour of the applicant. 2. the Tribunal no evidence or other materials to justify the making of the decision. 3. the Tribunal failed to grant to me a visa without any proper grounds or any proper investigation. 4 The Appellant appeared before the Court this morning unrepresented, but with the assistance of an interpreter.


case_text: In such circumstances it cannot be concluded that there was any failure on the part of the Tribunal to make a " proper investigation ". Nor was such a contention advanced before the Federal Magistrates Court. It should further be noted that even had the Appellant requested that a witness be called before the Tribunal, the Tribunal was under no duty to allow such evidence to be given: Migration Act 1958 (Cth), s 426(3). As was the like conclusion in VJAF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 178 , there is not considered in the present proceedings to be any reason to find that an obligation was imposed upon the Tribunal to call or to hear further evidence from the fellow Falun Gong practitioner referred to by the now Appellant. 22 The final ground is thus also rejected. 23 An Affidavit was filed in Court on the day of hearing seeking a fixed costs order in the event that the appeal was dismissed. That Affidavit sought a fixed costs order in the sum of $2,200. There is no reason to question that quantification.


case_title: Ellis v Rowbotham [1900] 1 QB 740

case_text: authority establishes that the statutory provision has no application where, as in the case of Projects 1 and 2, payment is made in advance: see Ellis v Rowbotham [1900] 1 QB 740 at 743, 744; The Australian Guarantee Corporation Limited v Balding [1930] HCA 10 ; (1930) 43 CLR 140 at 152-154 per Isaacs J; Amad v Grant; Grosglik v Grant [1947] HCA 9 ; (1947) 74 CLR 327 at 338 per Latham CJ (as noted in AOL's submissions, Dixon J (as his Honour then was) at 346 also cited Ellis v Rowbotham with apparent approval of it as supporting the present proposition at 346); Karacominakis v Big Country Developments Pty Ltd [2000] NSWCA 313 ; (2000) 10 BPR 18 ,235 at [147].


case_title: The Australian Guarantee Corporation Limited v Balding [1930] HCA 10 ; (1930) 43 CLR 140


case_title: Amad v Grant; Grosglik v Grant [1947] HCA 9 ; (1947) 74 CLR 327


case_title: Karacominakis v Big Country Developments Pty Ltd [2000] NSWCA 313 ; (2000) 10 BPR 18 ,235


case_outcome: referred to

case_text: The application for review was dismissed by Gyles J on 30 April 2002: NABC v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 539. On 25 November 2002 the Full Court dismissed an appeal from that decision: Applicant NABC of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 418.


case_title: Applicant NABC of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 418


case_text: On 13 October 2005 the applicant lodged his current application for judicial review in the Federal Magistrates Court to review the delegate's decision and that application was dismissed on 13 February 2006. 4 The Magistrate said that the applicant's application challenges the delegate's decision and she said it was doomed to fail because, among other things, the decision of the delegate was subsumed in the decision of the Tribunal. 5 I do not think that the applicant's proposed appeal enjoys any reasonable prospect of success. This case is similar to the case which came before Wilcox J in SZDFW v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1821. The Tribunal conducted a full merits review in relation to the decision of the delegate and the applicant was given every opportunity to present his case (see s 415 of the Migration Act 1958 (Cth), Zubair v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 248 ; (2004) 139 FCR 344). This Court found that the decision of the Tribunal was in no way affected by jurisdictional error. The delegate's decision is now of no significance having regard to the fact that it was reviewed by the Tribunal. 6 I think that in view of the history of this matter as I have outlined it, the order prohibiting without leave the filing of a further application to review the decision of the delegate and the decision of the Tribunal is justified. 7 The application for leave to appeal is dismissed. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko. Associate: Dated: 31 May 2006 Counsel for the Applicant: The applicant appeared in person. Counsel for the Respondent: Ms B Rayment Solicitor for the Respondent: Sparke Helmore Date of Hearing: 10 May 2006 Date of Judgment: 10 May 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/662.html


case_title: Zubair v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 248 ; (2004) 139 FCR 344


case_text: The function of the referral step is not to fix in stone all the details of a proposed "action" for the subsequent approval process. Rather, this mechanism results in the proposal either being brought within the Environment Act assessment and approval regime, or being exempted from the requirements of assessment and approval under the Act. In Anvil Hill Project Watch Association Inc v Minister for the Environment and Water Resources (2007) 97 ALD 398 at [70], Stone J described the scheme of the Act as providing an initial clearing house so that actions that are likely to have a significant impact on the environment are properly assessed and those that do not fall into that category may be identified in a timely way and not impeded. The referral mechanism operates as a kind of triage system. It is not the function of the triage nurse to make a detailed diagnosis, let alone prescribe treatment. 23 Since the environmental approval process for a major project can stretch out over years, as witness the present case, it would be a strange result if making an environment positive (or environment neutral but cost positive) change meant proponents were forced to start all over again, with inevitable cost and delay. If Blue Wedges' argument is correct there would be a strong disincentive for proponents to keep looking for environmentally friendly changes to a project. 24 The text of the Environment Act does not support Blue Wedges' construction. 25 The term "action" is defined in the broadest terms. By s 523 it includes (a) a project; and (b) a development; and (c) an undertaking; and (d) an activity or series of activities; and (e) an alteration of any of the things mentioned in paragraph (a), (b), (c) or (d). This width of definition is not surprising, given the varied work that the term has to do in the Act, including in the prohibitions in Pt 3, and given the limitless range of possible human conduct which might affect the environment, ranging from major complex operations like the Project to a simple, transient event. 26 When it comes to particular proposed actions, the Act does not purport to define a particular proposed action by reference to a description of the proposed action given in any document. Further, subject to certain limited exceptions described below, the Act does not require the referral to contain any particular information or to descend to any particular level of detail about the proposed action.


case_text: Thus, the power (which is expressed in discretionary, non-obligatory terms) to request information depends, not on an objective assessment of the sufficiency of the information before the Minister, but on the Minister's judgment (no doubt reasonably formed) as to whether he or she has enough information to make an informed decision. As to the difficulty of making out a legal challenge to decisions made under such powers, see Buck v Bavone [1976] HCA 24 ; (1976) 135 CLR 110 at 118-119, and Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 275-277.


case_text: In my view this is one of the exceptional occasions where regulations can be used as an aid to the construction of an Act. The Act, in this case the Environment Act, "provides a framework built on contemporaneously prepared regulations": Hanlon v Law Society [1981] AC 124 at 193; Elazac Pty Ltd v Commissioner of Patents (1994) 125 ALR 663 at 667.


case_title: Hanlon v Law Society [1981] AC 124 at 193


case_text: In my view, however, this is a clear case for the application of the Oshlack approach. The condition of Port Phillip Bay is a matter of high public concern, and not only for the four million or so Victorians who live around it. As might be expected, the Project has attracted much controversy. On Saturdays the Melbourne Age publishes a list of which it considers to be the "Five Big Issues" of the week. Last Saturday, 12 January, Port Phillip Bay channel deepening was third, topped only by Andrew Symonds in the Sydney Test and Hillary Clinton in New Hampshire. Although, as has been said in another context, there is a difference between what is in the public interest and what is of interest to the public ( Lion Laboratories Ltd v Evans and Others [1985] QB 526 at 553), in the present case the two happen to coincide. There is a public interest in the Approval Decision itself, and equally in whether it has been reached according to law. Also, the application raised novel questions of general importance as to the approval process under the Environment Act: cf Save the Ridge Inc v Commonwealth (2006) 230 ALR 430 at [11]-[12] (acknowledging that the existence of a novel and important question of statutory construction will be relevant to a court's discretion in public interest litigation to depart from the ordinary costs rule, but concluding that the issues of construction presented in that case were not questions of general importance.)


case_text: Blue Wedges argued that the regime established under Ch 4 of the Act proceeds on the assumption that the nature of an action referred for assessment will remain consistent throughout the assessment process. It said the regime is predicated on a series of decisions designed to ensure that the impacts of the action which has been referred are adequately assessed for each of the designated controlling provisions. That regime, it is said, would be subverted if the action changed during the course of the referral process such that the impacts of the action were likely to be different from the impacts of the action which was originally referred for determination. It is for this reason, so the argument went, that the Act places such importance on the accuracy of the information provided for the purposes of assessment. Blue Wedges cited Mees v Roads Corporation [2003] FCA 306 ; (2003) 128 FCR 418 at [118] , where it was said the Minister has no fact-finding role in the process of examining a referral of a proposed action. The Environment Minister must make a decision on the information provided in the referral. This consideration renders it all the more important that the referral document must contain information that is truthful and complete, so as not to mislead. 33 However, the Act expressly provides for the Minister to invite comments on the referral from various persons and bodies, including the public at large (s 74) and to seek further information from the proponent (s 76). Nor is there any reason to suppose that the Minister could not seek advice on factual matters from the Department or from any other person who might be able to assist the Minister in making a decision. Further, s 78 enables the Minister to reconsider his or her decision under s 75 in various circumstances, including where new information becomes available or where there has been a substantial change in circumstances relating to the likely impacts of a proposed action. So while obtaining truthful and accurate information is without doubt important, the freedom explicitly given to the Minister to obtain information from any source suggests, amongst other things, that it was contemplated the Minister might want information about a change in the proposed action. 34 Although in the present case the Referral came for the (then) proponent of the Project under s 68, the Environment Act also provides that a referral may come from a State or Territory (s 69), or a Commonwealth agency (s 71). There is a further provision that if the Federal Minister believes a person proposes to take an action that the Minister thinks may be or is a controlled action, the Minister may request that person, or a State or Territory that has responsibilities relating to the action, to refer the proposal (s 70). 35 Thus the Environment Act contemplates that a proposed action may be referred and made subject to the Act's processes whether the proponent likes it or not. This is hardly surprising; it could not be left up to proponents to decide whether or not the Act should apply. The significance of this for present purposes is that a proposed action may be referred to the Federal Minister against the wishes of the proponent, and regardless of its stage of development, and whether or not the proponent has had the opportunity to respond to issues raised by the Minister or anybody else. It would be quite unworkable if in such circumstances the proposed action could only be assessed in its form as at the time of referral. 36 Moreover, none of the decisional steps along the way the controlled action decision, identification of controlling provisions, selection of assessment method require a detailed assessment of the proposed action. That step only comes when the assessment itself is carried out and the subsequent approval given or refused. There seems to be no point in insisting that all the details of the proposed action remain the same throughout the whole process.


case_text: Accordingly, Blue Wedges submitted, the Assessment did not adequately assess all of the impacts of the Project. By making his decision on the basis of the Assessment and by failing to request additional information under s 132 of the Act, the Minister has failed to have regard to all considerations relevant to his decision under s 133 of the Act: see Minister for Environment and Heritage v Queensland Conservation Council Inc [2004] FCAFC 190 ; (2004) 139 FCR 24. 64 Although s 87(4)(d) of the Environment Act envisages that the Assessment report should contain "enough" information to let the Minister make an "informed decision", the Act does not require that the report is the sole repository of information for the Minister to make such a decision. Indeed, s 132 (amongst other sections) assumes that the Minister may have other sources of information available on which to base a decision under s 133, and may need to utilise those sources even after the receipt of an Assessment report. 65 Section 132 of the Act provides: If the Minister believes on reasonable grounds that he or she does not have enough information to make an informed decision whether or not to approve for the purposes of a controlling provision the taking of an action, the Minister may request any of the following to provide specified information relevant to the making of the decision: (a) the person proposing to take the action; ... (e) any other person the Minister considers appropriate. (Emphasis added.)


case_title: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 275-277


case_outcome: applied

case_text: Costs are in the discretion of the Court: Federal Court of Australia Act 1976 (Cth) s 43. In considering the award of costs under a similarly broad statutory discretion in Oshlack v Richmond City Council [1998] HCA 11 ; (1998) 193 CLR 72, a majority of the High Court held that the trial judge's discretion had not miscarried by taking into account such matters as the unsuccessful party's motivation to ensure obedience to environmental law and preservation of an endangered koala habitat, the fact that a significant number of members of the public shared that view, and that the basis of the challenge was arguable: see per Gaudron and Gummow JJ at [20],[49] and per Kirby J at [133], [136]-[144]; see also Save the Ridge Inc v Commonwealth (2006) 230 ALR 411 (discussing departures from the ordinary costs rule in public interest cases). 73 In my view, however, this is a clear case for the application of the Oshlack approach. The condition of Port Phillip Bay is a matter of high public concern, and not only for the four million or so Victorians who live around it. As might be expected, the Project has attracted much controversy. On Saturdays the Melbourne Age publishes a list of which it considers to be the "Five Big Issues" of the week. Last Saturday, 12 January, Port Phillip Bay channel deepening was third, topped only by Andrew Symonds in the Sydney Test and Hillary Clinton in New Hampshire. Although, as has been said in another context, there is a difference between what is in the public interest and what is of interest to the public ( Lion Laboratories Ltd v Evans and Others [1985] QB 526 at 553), in the present case the two happen to coincide. There is a public interest in the Approval Decision itself, and equally in whether it has been reached according to law. Also, the application raised novel questions of general importance as to the approval process under the Environment Act: cf Save the Ridge Inc v Commonwealth (2006) 230 ALR 430 at [11]-[12] (acknowledging that the existence of a novel and important question of statutory construction will be relevant to a court's discretion in public interest litigation to depart from the ordinary costs rule, but concluding that the issues of construction presented in that case were not questions of general importance.)


case_title: Save the Ridge Inc v Commonwealth (2006) 230 ALR 441


case_text: Judicial review of administrative action based on the Wednesbury unreasonable ground must be exercised with considerable restraint, otherwise there will be a blurring between what is judicial review and what is merits review of a decision with which a court disagrees. As Brennan J said in Attorney-General for the State of New South Wales v Quin [1990] HCA 21 ; (1990) 170 CLR 1 at 37: The repository of administrative power must often balance the interests of the public at large and the interests of minority groups or individuals. The courts are not equipped to evaluate the policy considerations which properly bear on such decisions, nor is the adversary system ideally suited to the doing of administrative justice: interests which are not represented as well as interests which are represented must often be considered. Moreover, if the courts were permitted to review the merits of administrative action whenever interested parties were prepared to risk the costs of litigation, the exercise of administrative power might be skewed in favour of the rich, the powerful, or the simply litigious. 162 I am unable to form the view that, on the entirety of the evidence, the Minister's 2007 assessment approach decision was so unreasonable that no reasonable Minister would have made it. 163 As none of the grounds in TWS's third amended application have been made out, the application must be dismissed. I certify that the preceding one hundred and sixty-three (163) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall. Associate: Dated: 9 August 2007 Counsel for the Applicant: Ms D Mortimer SC with Mr R Niall Solicitors for the Applicant: FitzGerald and Browne Lawyers Counsel for the First Respondent: Dr M Perry QC with Mr G Hill Solicitors for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: Mr G Uren QC with Mr T Walker Solicitors for the Second Respondent: Freehills Dates of Hearing: 4-6, 9-10 July 2007 Date of Judgment: 9 August 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1178.html


case_text: Counsel for TWS submit that the Minister's 2007 assessment approach decision was affected by apprehended bias. They contend that the facts and circumstances of this matter are such as would give rise in the mind of a fair-minded and informed member of the public, to a reasonable apprehension of a lack of impartiality on the Minister's part, and to an apprehension that the Minister prejudged the outcome of the decision he was required to make (see Webb v R [1994] HCA 30 ; (1994) 181 CLR 41 at 47 per Mason CJ and McHugh J and Brooks v The Upjohn Company (1998) 85 FCR 469 at 477).


case_text: However, that disappointment, anger and suspicion must be seen in the context of these facts: • it was Departmental practice to assist proponents with referrals and to meet to discuss them; • the planning for assessment on preliminary documentation was based on Mr Early's judgment that it was the correct approach; • although timelines were discussed between Gunns and the Department and in some of the material recording these discussions the language of "agreement" is used, I accept Mr Early's evidence that there was no guarantee that the process would be concluded by any particular time, because "the clock" might stop for some reason; • although the Australian Government had partly funded the proposal and supported it politically, it must be borne in mind that in making the decision on approval under s 133 of the EPBC Act, the Minister must consider "economic and social matters" under s 136(1)(b). As long as the steps required by the EPBC Act are taken by the Minister, the Australian Government is not prevented from having a policy position on the pulp mill project (see Hot Holdings Pty Limited v Creasy [2002] HCA 51 ; (2002) 210 CLR 438 at [50] ). 148 The critical issue is whether a well-informed reasonable observer would consider there was an apprehension of bias in the Minister. The Minister received strong advice from Mr Early, who firmly believed in the preliminary documentation assessment approach. Gunns lobbied him in favour of that approach. That approach also suited the Tasmanian Government and enhanced the chances of synchronisation of approval under the EPBC Act with approval by the Tasmanian Parliament. By 2 April 2007, the Minister wanted to know if an approval timeline ending in August 2007 was possible because he knew that was what the Tasmanian Government and Gunns were pursuing. However, the Minister did not consider the preliminary documentation assessment approach to the exclusion of all other approaches. Even during the course of making the assessment approach decision, the Minister questioned Mr Early about why another approach was not being recommended. At the time of making his decision, I do not consider that a well-informed observer could reasonably form the view that the Minister was biased towards the preliminary documentation assessment approach to the extent that he was not prepared to even consider alternative approaches, because he plainly did. 149 The allegation that the 2007 assessment approach decision is invalid due to apprehended bias is rejected.


case_text: As Gaudron J said in Industrial Equity Limited v Deputy Commissioner of Taxation [1990] HCA 46 ; (1990) 170 CLR 649 at 672: An improper purpose will not lightly be inferred and, by application of a presumption of regularity, will only be inferred if the evidence cannot be reconciled with the proper exercise of the power: see Reg. v Inland Revenue Commissioners; Ex parte Rossminster , per Lord Diplock. 157 In this proceeding, the evidence can be reconciled with the proper exercise of power having regard to the Minister's reasons for the 2007 assessment approach decision and the prevailing factual background referred to in the preceding paragraphs of these reasons for judgment relating to improper exercise of power. 158 The final ground to be considered in TWS's application is the allegation that the 2007 assessment approach decision was manifestly unreasonable. This is the least arguable ground raised in the third amended application.


case_text: As Gleeson CJ and McHugh J said in Minister for Immigration and Multicultural Affairs; Ex parte Eshetu [1999] HCA 21 ; (1999) 197 CLR 611 at [40] : Someone who disagrees strongly with someone else's process of reasoning on an issue of fact may express such disagreement by describing the reasoning as "illogical" or "unreasonable", or even "so unreasonable that no reasonable person could adopt it". If these are merely emphatic ways of saying that the reasoning is wrong, then they may have no particular legal consequence. Further at [44], their Honours said: As Mason J pointed out in Minister for Aboriginal Affairs v Peko-Wallsend Ltd... , when the ground of asserted unreasonableness is giving too much or too little weight to one consideration or another "a court should proceed with caution...lest it exceed its supervisory role by reviewing the decision on its merits".