case_text: Since the applicant based his submission that privilege had been waived upon the disclosure of an unedited copy of the memorandum, it is convenient to begin with subsections (2) and (4), which deal expressly with disclosure. It will be necessary subsequently to consider what, if any, application subsection (1) may have to the present case. Before turning to those operative provisions, however, I observe that the exceptions to the operation of those provisions provided in subsections (3) and (5) were not enlivened by the facts of this case. Subsection (3) relieves the effect of subsection (2) where the disclosure is made by an agent, unless the agent was authorised to make the disclosure. The disclosure in the present case was made by the respondents' solicitors, who are agents of the client. There was no suggestion that the disclosure was unauthorised, but in any event I am satisfied that the waiver of a client's privilege over documents lies within the ostensible authority of the client's solicitor and that ostensible authority is sufficient for the purposes of the proviso in subsection (3). That view is supported in the authorities: Meltend Pty Ltd v Restoration Clinics of Australia Pty Ltd (1997) 145 ALR 391 at 403 per Goldberg J; Sovereign Motor Inns Pty Ltd v Bevillesta [2000] NSWSC 521 (" Sovereign ") at [24] per Austin J. Therefore, subsection (3) does not operate in this case. Subsection (5), which deals with disclosures between persons with common legal representation or a common interest in a proceeding, is plainly inapplicable. 145 For the purposes of subsection (2), the applicant must establish that the client "knowingly and voluntarily disclosed to another person the substance of the evidence and the disclosure was not made [in one of the four specified circumstances]". None of the specified circumstances obtain. Moreover, it is clear that there was disclosure "to another person" (the applicant himself) of the entirety of the evidence, such that no question as to what amounts to "the substance of the evidence" arises. The point turned upon whether the disclosure was made "knowingly and voluntarily". The relationship between mistaken or inadvertent disclosure and voluntary disclosure cannot be expressed definitively. It has been held that disclosure by mistake is not, for that reason alone, involuntary, at least where the disclosure is made in the course of formal discovery: Meltend Pty Ltd v Restoration Clinics of Australia Pty Ltd (1997) 145 ALR 391 at 406 per Goldberg J. The relevant disclosure in the present case occurred when written submissions were served upon the applicant by the respondents. In fact, in the formal discovery process, that is, when the respondents' list of documents was filed, privilege was claimed over those parts of the memorandum dealing with the legal advice from the AGS. Even if some mistaken disclosures can nonetheless be made knowingly and voluntarily within the meaning of subsection (2), I was not satisfied that there was such a disclosure in this case. This is a case "where everything indicates an intention to claim privilege in respect of the document and what has gone wrong is attributable to sheer inadvertence or carelessness": Sovereign at [23] per Austin J; see also BT Australasia Pty Ltd v New South Wales (No 8) (1998) 154 ALR 202 at 208-209 per Sackville J. In Sovereign , Austin J placed weight upon the fact that the solicitor in receipt of the privileged letter mistakenly disclosed must have realised that it was privileged. That is equally true in the present case in light of the respondents' solicitors' letter to the applicant of 7 February 2007 which asserted the privilege. Moreover, the written submissions (to which the unedited copy of the memorandum was attached) referred to the memorandum as "document 49 in the List of Documents", in respect of which privilege was claimed, and claimed to the knowledge of the applicant. This fact militates against the view that the respondents intended to change their position in respect of the privilege and that it was voluntarily waived when the written submissions were served.


case_outcome: referred to

case_text: Particular A of the third and fourth grounds of challenge is that the second respondent failed to take into account four matters. First, it is alleged he failed to take into account "the full requirements of the applicant's duties". It was certainly relevant for the second respondent to take into account the nature of the applicant's duties and, in my opinion, he clearly did that. The applicant did not identify the duties he alleges he was required to carry out which were not taken into account by the second respondent and even if the applicant went beyond his duties the evidence went nowhere near establishing that this would explain all of the system violations. Secondly, it is alleged that the second respondent failed to take into account the fact that the applicant reported to the ATO's Director of Computer Security that a serious weakness existed in the security of ATO taxpayer data. I refer to my findings in [62] above. I do not think it is a relevant consideration or, if it is, in my opinion it is "so insignificant that the failure to take it into account could not have materially affected the decision": Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24 at 46 per Mason J (as he then was). Furthermore, the second respondent said in his reasons that he could not make a finding as to the applicant's motive. Thirdly, it is alleged that the second respondent failed to take into account the fact that at no time did the applicant breach ATO security. The second respondent took into account the fact that the system violations were attempted breaches of security. Having regard to the decision he was required to make, he was not required to go any further. Fourthly, it is alleged that the second respondent failed to take into account that the applicant's use of the ATO computer facilities during the period December 1996 to April 1997 was not qualitatively different from the use made of those computer facilities by other ATO officers during that period. As I said earlier, the asserted fact was not established and, indeed, the contrary was established. 130 Particulars B, C and D can be dealt with together. Particular B is an allegation that the second respondent improperly took into account the assertion that taxpayer data could have been improperly accessed if the applicant succeeded in accessing the computer facilities when the computer facilities accessed did not contain any taxpayer data. This seems to me to contain two allegations: first, that there was an error of fact and the computer facilities to which access was attempted did not contain taxpayer data and, secondly, assuming that fact it would be irrelevant. Particular C is an allegation that the second respondent improperly took into account that "with further work" the applicant could have gained the ability to gain access to production taxpayer data, sensitive ATO staff record data and access to computer systems which would put at risk the ability of ATO core business systems to continue to function. Particular D is an allegation that the second respondent improperly took into account the assertion that the applicant was seeking to access production taxpayer data or sensitive ATO staff record data without verifying the assertion. I have already referred to the second respondent's reasons (at [56] above). There was ample evidence in support of the second respondent's conclusions and they were proper matters for him to take into account. 131 Particular E is an allegation that the second respondent improperly took into account the assertion that the applicant had comprehensively responded to the allegations put to the applicant by the third respondent and the assertion that the applicant did not wish to discuss the matter with him when the applicant had in fact requested that a meeting be arranged. As I read the second respondent's reasons he did not take this into account as a consideration and it is no more than a statement of what had happened. Insofar as it is an allegation of a breach of the rules of natural justice, I reject it for the reasons previously given.


case_text: The relationship between s 5(1)(h) and s 5(3) has been the subject of a good deal of debate in the authorities: Bond at 355-358 per Mason CJ; Minister for Immigration and Multicultural Affairs v Rajamanikkam [2002] HCA 32 ; (2002) 210 CLR 222 (" Rajamanikkam "); SGFB v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 422 (" SGFB ") at [17]-[21] per von Doussa, O'Loughlin and Selway JJ; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Applicants S134/2002 [2003] HCA 1 ; (2002) 211 CLR 441 at 458 [35] - [36] per Gleeson CJ, McHugh, Gummow, Hayne and Callinan JJ. Rajamanikkam and SGFB dealt with provisions in the then Migration Act 1958 (Cth) which were in similar terms to s 5(1)(h) and s 5(3) of the ADJR Act and, in Rajamanikkam , the Justices made it clear that their analysis also applied to the ADJR Act provisions: at 226 [1], 234 [32]-[34] per Gleeson CJ at 240 [54] per Gaudron and McHugh JJ and at 244 [74] and 255 [110] per Kirby J. An important question debated in those authorities is whether the ground in s 5(1)(h) is made out if one of the matters in s 5(3) is established, or the ground in s 5(1)(h) is made out only if there was no evidence or other material to justify the making of the decision and one of the matters in s 5(3) is established.


case_title: Minister for Immigration and Multicultural and Indigenous Affairs, Re; Ex Parte Applicants S134/2002 [2003] HCA 1 ; (2002) 211 CLR 441


case_text: The starting point is the Evidence Act 1995 (Cth) ("Evidence Act"), the provisions of which, at least insofar as legal professional privilege (or, more accurately, "client legal privilege") is concerned, apply where, as here, evidence is sought to be adduced. The respondents did not address directly the operation of the Evidence Act and I was taken, in argument, to cases where the common law was the applicable law either because of the jurisdiction or because of the pre-trial (discovery and production) context in which the issue of privilege arose ( Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1; Bennett v Australian Customs Service [2004] FCAFC 237 ; (2004) 140 FCR 101; Secretary to the Department of Justice v Osland [2007] VSCA 96 ; GT Corporation Pty Ltd v Amare Safety Pty Ltd [2007] VSC 123). Whatever assistance I may derive from those cases, it is clear that my starting point must be the provisions of the Evidence Act . Equally, the applicant did not articulate precisely the legal basis for his submission that the privilege had been waived, although I understood his submission to be based upon the disclosure to him of the unedited copy of the memorandum by the respondents' solicitors.


case_text: The relationship between s 5(1)(h) and s 5(3) has been the subject of a good deal of debate in the authorities: Bond at 355-358 per Mason CJ; Minister for Immigration and Multicultural Affairs v Rajamanikkam [2002] HCA 32 ; (2002) 210 CLR 222 (" Rajamanikkam "); SGFB v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 422 (" SGFB ") at [17]-[21] per von Doussa, O'Loughlin and Selway JJ; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Applicants S134/2002 [2003] HCA 1 ; (2002) 211 CLR 441 at 458 [35] - [36] per Gleeson CJ, McHugh, Gummow, Hayne and Callinan JJ. Rajamanikkam and SGFB dealt with provisions in the then Migration Act 1958 (Cth) which were in similar terms to s 5(1)(h) and s 5(3) of the ADJR Act and, in Rajamanikkam , the Justices made it clear that their analysis also applied to the ADJR Act provisions: at 226 [1], 234 [32]-[34] per Gleeson CJ at 240 [54] per Gaudron and McHugh JJ and at 244 [74] and 255 [110] per Kirby J. An important question debated in those authorities is whether the ground in s 5(1)(h) is made out if one of the matters in s 5(3) is established, or the ground in s 5(1)(h) is made out only if there was no evidence or other material to justify the making of the decision and one of the matters in s 5(3) is established. 109 Sitting as a single Judge of the Court, I think the issue I have identified has, as far as the relationship between s 5(1)(h) and s 5(3)(b) is concerned, been resolved by the Full Court of this Court in SGFB . A party seeking to make out the ground in s 5(1)(h) by establishing that the decision-maker based his decision on the existence of a particular fact and that fact did not exist must also establish that there was no evidence or other material to justify the making of the decision. 110 The allegations in this case suggest that the applicant seeks to make out the ground in s 5(1)(h) by reference to s 5(3)(a). The question whether he does so only if he establishes the matter in s 5(3)(a) and that there was no evidence or other material to justify the making of the decision or whether he does so simply by establishing the matter in s 5(3)(a) has not been authoritatively determined. I did not have the benefit of submissions on the point and, indeed, the applicant was not legally represented. I do not need to resolve the difficult question raised because even on the assumption most favourable to the applicant, that is to say, that all he need do is establish the matter in s 5(3)(a) , the ground in s 5(1)(h) is not made out. 111 One of the matters which must be satisfied in order to make out the ground in s 5(3)(a) is that the particular matter was one the decision-maker was required by law to find established before reaching the decision in question. In considering that matter, it may be noted that there is some artificiality in the assumption upon which I am proceeding, namely, that the act of the third respondent in forming the opinion that the applicant may have failed to fulfil his duty as an officer and informing the first respondent of that opinion is a decision to which the ADJR Act applies. However, proceeding on that assumption, it might be said that the particular matter the third respondent was required by law to find established before reaching his decision was that the applicant may have failed to fulfil his duty as an officer. If that is so, it cannot be said that there was no evidence or other material from which the third respondent could reasonably be satisfied of that matter. There was ample evidence upon which the third respondent could form the opinion that the applicant may have failed to fulfil his duty as an officer. 112 The alternative is that the applicant contends that the particulars are "particular matters" within s 5(3). The particulars are expressed in positive terms and I think to make sense of the allegation it is necessary to construe the particulars as in effect allegations that there was no evidence or other material from which the third respondent could reasonably be satisfied that the applicant's use of the ATO computer facilities was inconsistent with the manner in which he had been performing his duties since he commenced work with the ATO and not in accordance with the requirements of his duties and inconsistent with the manner in which other officers of the Service working in the ATO performed their duties. The immediate difficulty with this submission is that these are not particular matters required by law to be established before the third respondent formed his opinion and conveyed that opinion to the first respondent. Alternatively, for reasons I have already given, it cannot be said that there is no evidence or other material from which the third respondent could reasonably be satisfied that these matters were established. There was ample evidence that the applicant's computer usage was outside the scope of his duties and inconsistent with computer usage by other employees within the ATO. 113 The applicant has failed to establish the matters in s 5(3)(a). 114 Because the applicant was unrepresented, I have considered whether he might have been able to bring his particulars within s 5(3)(b). I have concluded that he could not. The applicant has failed to show the non-existence of any fact relied upon by the third respondent, let alone any "particular fact". Moreover, there was evidence justifying the decision of the third respondent and, as I have already said, showing that there was no evidence is an additional hurdle to review under s 5(1)(h): SGFB . 115 The first ground of challenge to the second decision is that there was a breach of the rules of natural justice. Putting to one side the allegation in relation to the first decision that the third respondent should have disqualified himself, the particulars of breach are in similar terms to the particulars of breach given in relation to the first decision. The first respondent considered whether the applicant should be given notice of the matters of concern before the meeting on 4 June 1997 and decided that because of security concerns he should not be given such notice. On the evidence before me that was a conclusion which was reasonably open to her. The applicant was given notice of the matters of concern at the meeting on 4 June 1997 and to that extent he was given the opportunity to respond. If an opportunity to be heard within s 63B(1C) is satisfied by the notice he was given at the meeting, then the obligation in the subsection was satisfied. To the extent that it was not satisfied by that action, the subsection was nevertheless satisfied because in that event the case fell within s 63B(1C)(b). 116 The second ground of challenge in relation to the second decision is that s 63B(1C) (incorrectly referred to in the statement of claim as s 63B(1A)) was not complied with. This ground of challenge fails for the reasons given in relation to the first ground of challenge.


case_outcome: followed

case_text: Since the applicant based his submission that privilege had been waived upon the disclosure of an unedited copy of the memorandum, it is convenient to begin with subsections (2) and (4), which deal expressly with disclosure. It will be necessary subsequently to consider what, if any, application subsection (1) may have to the present case. Before turning to those operative provisions, however, I observe that the exceptions to the operation of those provisions provided in subsections (3) and (5) were not enlivened by the facts of this case. Subsection (3) relieves the effect of subsection (2) where the disclosure is made by an agent, unless the agent was authorised to make the disclosure. The disclosure in the present case was made by the respondents' solicitors, who are agents of the client. There was no suggestion that the disclosure was unauthorised, but in any event I am satisfied that the waiver of a client's privilege over documents lies within the ostensible authority of the client's solicitor and that ostensible authority is sufficient for the purposes of the proviso in subsection (3). That view is supported in the authorities: Meltend Pty Ltd v Restoration Clinics of Australia Pty Ltd (1997) 145 ALR 391 at 403 per Goldberg J; Sovereign Motor Inns Pty Ltd v Bevillesta [2000] NSWSC 521 (" Sovereign ") at [24] per Austin J. Therefore, subsection (3) does not operate in this case. Subsection (5), which deals with disclosures between persons with common legal representation or a common interest in a proceeding, is plainly inapplicable. 144 It is unclear on the authorities whether subsections (2) and (4) have exclusive spheres of operation, or whether they overlap to some degree. On one view, subsection (2) applies when the disclosure is made by the client (including the client's solicitor: s 117(1)(b)) and subsection (4) applies when the disclosure is made by some other person. This interpretation has its genesis in Telstra Corp Ltd v Australis Media Holdings Pty Ltd (1997) 41 NSWLR 346 at 350-351 per McClelland CJ in Eq and was described by the Full Court of this Court as "cogent and persuasive": Carnell v Mann (1998) 89 FCR 247 at 261 per Higgins, Lehane and Weinberg JJ. Carnell v Mann was overruled by the High Court (on a different point) ( Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1) so the Full Court's decision is not binding on me, although it is a persuasive authority (see also J D Heydon Cross on Evidence (7 th Australian ed, 2004) [25300] 838-839). An alternative view is that the subsections operate together, the relevant distinction between the two being knowing and voluntary disclosure (subsection (2)) as opposed to express or implied consent to the disclosure (subsection (4)): see S Odgers Uniform Evidence Law (6 th ed, 2004) [1.3.11100] 474-475. In Sovereign Motor Inns Pty Ltd v Bevillesta [2000] NSWSC 521 , Austin J expressly doubted the interpretation according each subsection an exclusive sphere of operation, but left open the question because his Honour had not had the benefit of argument on the point. I am in a similar position in the present case. Given the doubt attending the question, it would not be appropriate to attempt to resolve the conflicting views without the benefit of full argument where the resolution is unnecessary to the decision. In my opinion, the applicant was unable to establish waiver under either subsection and I was content to proceed on the assumption, without deciding the point, that the applicant may rely prima facie on either subsection. 145 For the purposes of subsection (2), the applicant must establish that the client "knowingly and voluntarily disclosed to another person the substance of the evidence and the disclosure was not made [in one of the four specified circumstances]". None of the specified circumstances obtain. Moreover, it is clear that there was disclosure "to another person" (the applicant himself) of the entirety of the evidence, such that no question as to what amounts to "the substance of the evidence" arises. The point turned upon whether the disclosure was made "knowingly and voluntarily". The relationship between mistaken or inadvertent disclosure and voluntary disclosure cannot be expressed definitively. It has been held that disclosure by mistake is not, for that reason alone, involuntary, at least where the disclosure is made in the course of formal discovery: Meltend Pty Ltd v Restoration Clinics of Australia Pty Ltd (1997) 145 ALR 391 at 406 per Goldberg J. The relevant disclosure in the present case occurred when written submissions were served upon the applicant by the respondents. In fact, in the formal discovery process, that is, when the respondents' list of documents was filed, privilege was claimed over those parts of the memorandum dealing with the legal advice from the AGS. Even if some mistaken disclosures can nonetheless be made knowingly and voluntarily within the meaning of subsection (2), I was not satisfied that there was such a disclosure in this case. This is a case "where everything indicates an intention to claim privilege in respect of the document and what has gone wrong is attributable to sheer inadvertence or carelessness": Sovereign at [23] per Austin J; see also BT Australasia Pty Ltd v New South Wales (No 8) (1998) 154 ALR 202 at 208-209 per Sackville J. In Sovereign , Austin J placed weight upon the fact that the solicitor in receipt of the privileged letter mistakenly disclosed must have realised that it was privileged. That is equally true in the present case in light of the respondents' solicitors' letter to the applicant of 7 February 2007 which asserted the privilege. Moreover, the written submissions (to which the unedited copy of the memorandum was attached) referred to the memorandum as "document 49 in the List of Documents", in respect of which privilege was claimed, and claimed to the knowledge of the applicant. This fact militates against the view that the respondents intended to change their position in respect of the privilege and that it was voluntarily waived when the written submissions were served. 146 For the purposes of subsection (4), the applicant must establish that the substance of the evidence has been disclosed with the express or implied consent of the client to another person (with two exceptions, neither presently relevant). Again, no issue regarding "the substance of the evidence" arises and the point turned upon whether there was express or implied consent. Where, as is the case here, the disclosure was made by the client (within the statutory definition, which encompasses agents and hence solicitors: s 117) and not by a third party, it follows from my finding that the disclosure was not voluntary, that the disclosure was not made with express or implied consent. The factors relevant to a determination of whether the solicitors (who, it is to be recalled, had ostensible authority to waive the privilege) consented to the disclosure include the conduct and intentions of the solicitors: Sovereign at [27] per Austin J. As I have said, I accept, based on the evidence before me, that the disclosure was entirely inadvertent and, in such circumstances, it cannot be said that the disclosure was consensual, expressly or impliedly. 147 Waiver of privilege at common law, which is brought about by "the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and the maintenance of the confidentiality" ( Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1 at [29] per Gleeson CJ, Gaudron, Gummow and Callinan JJ) is described as an "imputed waiver" because it does not depend upon the subjective intentions of the client. Subsection (4) is not satisfied by imputed consent of this species: Sovereign at [28] per Austin J. It is not necessary for the purpose of subsection (4) to consider the common law test and I conclude that subsection (4) is not made out. The common law test is, however, relevant to a consideration of subsection (1) to which I now turn.


case_title: Talbot v NRMA Ltd [2000] NSWSC 602

case_text: Section 121 provides three ways in which client legal privilege does not prevent the adducing of evidence. Clearly, neither subsection (1) (which applies where the client or party has died) nor subsection (2) (which applies where the court would be prevented from enforcing an order of an Australian court were the evidence not adduced) apply. Subsection (3) provides: (3) This Division does not prevent the adducing of evidence of a communication or document that affects a right of a person. The subsection has been interpreted narrowly and requires that the communication affect a right directly, and not merely be relevant to a right or be evidence of a right otherwise created or affected. In Talbot v NRMA Ltd [2000] NSWSC 602 , Hodgson CJ in Eq observed (at [3]): [the words] cannot mean a communication or document that is relevant to a right of a person because that would virtually eliminate the legal professional privilege as a ground for non-admission of evidence. In my opinion, that must mean a communication or document that affects in some fairly direct way what are the actual rights and perhaps also duties of a person. I respectfully agree and in my opinion it was clear that the subsection had no application to the present case. 142 Section 122 , which deals with loss of client legal privilege by consent, required close examination on the facts of the present case. The section provides: 122 Loss of client legal privilege: consent and related matters (1) This Division does not prevent the adducing of evidence given with the consent of the client or party concerned. (2) Subject to subsection (5), this Division does not prevent the adducing of evidence if a client or party has knowingly and voluntarily disclosed to another person the substance of the evidence and the disclosure was not made: (a) in the course of making a confidential communication or preparing a confidential document; or (b) as a result of duress or deception; or (c) under compulsion of law; or (d) if the client or party is a body established by, or a person holding office under, an Australian law to the Minister, or the Minister of the State or Territory, administering the law, or the part of the law, under which the body is established or the office is held. (3) Subsection (2) does not apply to a disclosure by a person who was, at the time, an employee or agent of a client or party or of a lawyer unless the employee or agent was authorised to make the disclosure. (4) Subject to subsection (5), this Division does not prevent the adducing of evidence if the substance of the evidence has been disclosed with the express or implied consent of the client or party to another person other than: (a) a lawyer acting for the client or party; or (b) if the client or party is a body established by, or a person holding office under, an Australian law to the Minister, or the Minister of the State or Territory, administering the law, or the part of the law, under which the body is established or the office is held. (5) Subsections (2) and (4) do not apply to: (a) a disclosure by a client to another person if the disclosure concerns a matter in relation to which the same lawyer is providing, or is to provide, professional legal services to both the client and the other person; or (b) a disclosure to a person with whom the client or party had, at the time of disclosure, a common interest relating to a proceeding or an anticipated or pending proceeding in an Australian court or a foreign court. (6) This Division does not prevent the adducing of evidence of a document that a witness has used to try to revive the witness's memory about a fact or opinion or has used as mentioned in section 32 (attempts to revive memory in court) or 33 (evidence given by police officers).


case_text: Subsection (1) provides for the loss of client legal privilege where the evidence adduced is "given with the consent of the client or party concerned". The Full Court of this Court has held that consent in this context is not limited to express consent but reaches cases where the client is deemed to have consented to the disclosure of otherwise privileged material: Telstra Corporation Ltd v BT Australasia Pty Ltd (1998) 85 FCR 152 at 168 per Branson and Lehane JJ. But this decision was limited to cases where the waiver is based upon conduct other than disclosure. Their Honours said (at 168): Of course, as [ Adelaide Steamship Pty Ltd v Spalvins (1998) 81 FCR 360] demonstrates, the position may be different where the conduct relied upon is some disclosure of legal advice, but that need not be further considered here. As a matter of statutory construction, because subsections (2) and (4) deal specifically with waiver by disclosure, it is unlikely that the legislature intended subsection (1) to provide some wider basis for finding there to have been waiver by disclosure. In my view, subsection (1) applies where consent is given to the adducing of evidence in court (rather than disclosure out of court) or where a client engages in conduct inconsistent with the maintenance of the privilege, such as where the substance of legal advice received is relied upon in order to raise an issue in the proceeding. Insofar as the applicant's submission on the waiver of privilege relies upon the inadvertent disclosure of the memorandum in the respondents' written submissions, subsection (1) is of no assistance. 149 Subsection (1), in the applicable sense described above, may have been raised by the applicant in another way and I considered whether privilege may have been waived by some reason other than the disclosure. In particular, in the letter from the AGS dated 28 July 1998 to the applicant the second respondent's reasons are set out and it is said that the second respondent "also took into account the advice". I considered whether the maintenance of legal professional privilege was inconsistent with that assertion and, as such, whether consent to the adducing of the evidence could be imputed and the privilege lost by operation of subsection (1). I was not prepared to conclude that the assertion and maintenance of the privilege were inconsistent because there was nothing before me to indicate that the legal advice said to have been taken into account by the second respondent was the legal advice received from the AGS. 150 It remains only briefly to observe that the common law relating to legal professional privilege, and its reliance to some extent upon notions of fairness, may be relevant to my discretion to exclude evidence under s 135 of the Evidence Act . But this would arise only if I had concluded that privilege was lost under s 122 and the respondent made an application to exclude the evidence for reasons of fairness, notwithstanding its unprivileged status.


case_text: It is unclear on the authorities whether subsections (2) and (4) have exclusive spheres of operation, or whether they overlap to some degree. On one view, subsection (2) applies when the disclosure is made by the client (including the client's solicitor: s 117(1)(b)) and subsection (4) applies when the disclosure is made by some other person. This interpretation has its genesis in Telstra Corp Ltd v Australis Media Holdings Pty Ltd (1997) 41 NSWLR 346 at 350-351 per McClelland CJ in Eq and was described by the Full Court of this Court as "cogent and persuasive": Carnell v Mann (1998) 89 FCR 247 at 261 per Higgins, Lehane and Weinberg JJ. Carnell v Mann was overruled by the High Court (on a different point) ( Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1) so the Full Court's decision is not binding on me, although it is a persuasive authority (see also J D Heydon Cross on Evidence (7 th Australian ed, 2004) [25300] 838-839). An alternative view is that the subsections operate together, the relevant distinction between the two being knowing and voluntary disclosure (subsection (2)) as opposed to express or implied consent to the disclosure (subsection (4)): see S Odgers Uniform Evidence Law (6 th ed, 2004) [1.3.11100] 474-475. In Sovereign Motor Inns Pty Ltd v Bevillesta [2000] NSWSC 521 , Austin J expressly doubted the interpretation according each subsection an exclusive sphere of operation, but left open the question because his Honour had not had the benefit of argument on the point. I am in a similar position in the present case. Given the doubt attending the question, it would not be appropriate to attempt to resolve the conflicting views without the benefit of full argument where the resolution is unnecessary to the decision. In my opinion, the applicant was unable to establish waiver under either subsection and I was content to proceed on the assumption, without deciding the point, that the applicant may rely prima facie on either subsection.


case_text: In considering the application for leave to amend, I had regard to the well-known principles referred to in the decision of the High Court in The State of Queensland v J L Holdings Pty Ltd [1997] HCA 1 ; (1997) 189 CLR 146. 15 The applicant sought to put forward new and quite different claims at a very late stage of the trial. It was clear, at least from the respondents' point of view, that it was likely that if the amendments were allowed, witnesses would have to be recalled and new witnesses may need to have been called. If the amendments were allowed, the trial would have had to be adjourned and it was likely that another pre-trial set of procedural orders would need to have been made. The applicant asserted, but did not establish to my satisfaction, that his application to amend had come forward only because of late discovery or disclosure of material by the respondents. He certainly did not establish that the application to amend could not have been made well before the commencement of the trial. In the circumstances, I did not think that it was appropriate to allow the amendments and I refused leave to amend. In those circumstances I did not need to consider some of the other grounds advanced (but not developed) by the respondents in opposing the application for leave to amend. Those grounds included an assertion that the proposed new causes of action were out of time and statute-barred and that some of the proposed new claims were unarguable as a matter of law. 16 The applicant gave evidence. The bulk of his evidence-in-chief was given by way of affidavit and he was cross-examined by counsel for the respondents. He was in 1997 and remains obsessed by what he perceives to be the injustice involved in the way in which he was treated by the ATO, officers of the ATO and others. He tended to focus on matters which were not directly relevant to the issues in the proceeding. He is convinced that there was a conspiracy against him led by the third respondent. A good deal of his evidence was irrelevant to the issues raised in this proceeding and other "evidence" in his affidavits was in reality submissions about why I should find that the third respondent was motivated by improper considerations. I approach the applicant's evidence with considerable caution and I accept the evidence of the respondents where there is a conflict. For reasons I will give, I reject the applicant's evidence that he was given an access privilege to the ATO computer system in May 1997. Further, some of the evidence he gave directed to establishing possible innocent explanations for certain system violations was confusing, but even if accepted, did not rise anywhere near a level sufficient to establish an error of the type identified in s 5 of the ADJR Act .


case_text: 30 October 2009, for reasons which I then gave ex tempore, I adjourned the hearing of the Deputy Commissioner of Taxation's (Deputy Commissioner) application for the winding up of Bedroff Pty Ltd ACN 079 158 955 (the company) to 24 November 2009: see Deputy Commissioner of Taxation v Bedroff Pty Ltd ACN 079 158 955 [2009] FCA 1266. These reasons for judgement should be read in conjunction with those earlier reasons. On 24 November 2009, the Deputy Commissioner renewed his application for the winding up of the company. That application was opposed, nominally, by the company. The effect of the appointment of administrators on 29 October 2009 was to place the company under their control and, while it is under administration and save with the administrators' written approval, to suspend the powers of its officers to exercise their powers or functions. The company has but one officer, its director Mr Mark Tonge. To the extent that the company is itself inhibited from opposing the Deputy Commissioner's application, I am prepared to treat the application as one opposed by Mr Mark Tonge. It is he who has proposed the deed of company arrangement in question. As will be seen, he is to be the beneficiary of particular releases for which that proposed deed provides. The submission made in opposition to the Deputy Commissioner's application was that I should be satisfied, on the material by then to hand, that it was in the interests of the company's creditors for the company to continue under administration rather than be wound up. If so satisfied I am obliged by s 440A(2) of the Corporations Act 2001 (Cth) (Corporations Act) to adjourn further the hearing of the application for an order for the winding up of the company.


case_outcome: cited

case_title: Public Trustee of Queensland v Octaviar Ltd (subject to a Deed of Company Arrangement) (Receivers and Managers Appointed) (2009) 69 ACSR 621

case_text: position which obtained on 30 October 2009 was that, though the information then to hand concerning the benefits which might flow to creditors under a Deed of Company Arrangement was then general, enough was revealed to admit of satisfaction that it was at least in the interests of creditors for the company to continue under administration for a short time so as to enable the terms of the deed to be precisely formulated, the position in relation to the company's affairs to be investigated at least in a preliminary way by the administrators and for a binding commitment to be made on behalf of a related creditor whom it was said would subordinate his interests to those of other unsecured creditors for the purposes of any distribution under the proposed deed of company arrangement. In effect and as matters then stood, I was persuaded that observations made by Philip McMurdo J in Public Trustee of Queensland v Octaviar Ltd (subject to a Deed of Company Arrangement) (Receivers and Managers) (2009) 69 ACSR 621 told in favour of such satisfaction. It was not at that early stage a patent absence of a basis for satisfaction that it was in the interests of creditors for the company to continue under administration; cf Deputy Commissioner of Taxation v WPS Motorsport Pty Ltd (2009) 71 ACSR 640.


case_title: Deputy Commissioner of Taxation v WPS Motorsport Pty Ltd (2009) 71 ACSR 640


case_outcome: applied

case_text: deed of removal and appointment does not make any express provision for the indemnification by FUFM from the trust fund of the Barr Trust of liabilities incurred by the company in the ordinary course of its prior administration of that. If it were thought at that time that the company's removal from the office of trustee and that absence of provision might in some way have insulated the trust fund from the claims of the company's creditors or its liquidator if it were wound up, that view was mistaken. That absence of express provision does not affect the position which prevails in equity. The company is entitled to be reimbursed from the trust fund of the Barr Trust in respect of expenses incurred by it in the administration of that trust up to and including the time of its removal as trustee. As was explained in Chief Commissioner of Stamp Duties (New South Wales) v Buckle [1998] HCA 4 ; (1998) 192 CLR 226 at 247, [50] (Buckle's case).by reference to a statement earlier made in Vacuum Oil Co Pty Ltd v Wiltshire [1945] HCA 37 ; (1945) 72 CLR 319 at 335, "the trustee's right to exoneration or recoupment 'takes priority over the rights in or in reference to the assets of beneficiaries or others who stand in that situation'." I did not understand the submission made in opposition to the Deputy Commissioner's application to gainsay that position.


case_outcome: considered

case_title: Vacuum Oil Co Pty Ltd v Wiltshire [1945] HCA 37 ; (1945) 72 CLR 319


case_text: would seem that Mr Hayes is either unaware of the change in July in the occupancy of the office of trustee or unaware of its impact. It is unnecessary to decide which. Mr James Tonge's claim for "unpaid beneficiary entitlements" is a claim to be paid from the trust fund of the Barr Trust. It is the responsibility of the trustee for the time being of the Barr Trust to meet that claim insofar as the trust fund is in surplus and subject to any priority claim on that fund. The trustee of the Barr Trust is no longer the company but rather FUFM. Further, even assuming that there remains any surplus after the claims of secured creditors are met, unless and until the company's entitlement to reimbursement, referred to above, is satisfied, it is impossible even to state what the trust fund of the Barr Trust comprises: see also in addition to Buckle's case, CPT Custodian Pty Ltd v Commissioner of State Revenue (Victoria) [2005] HCA 53 ; (2005) 224 CLR 98 at 121, [51] . Again, the absence of any discrimination in the administrators' draft report as between the claims of those such as the Deputy Commissioner who were and remain creditors of the company and those such as Mr James Tonge who, as beneficiaries, have a claim against the trust fund (such as it may be) of the Barr Trust is a significant omission. That employee entitlements are being foregone in the proposed deed of company arrangement is an offer the value of which is moot. As explicitly identified, they amount to no more than $7,000. Further, even this amount and the further statement in para 12.12 of the draft report that the administrators had "received a claim from Mr Mark Tonge in the amount of $300,000 for unpaid wages" is at odds with the statement in para 12.11 of the draft report where the administrators note that, "the company did not have any employees and therefore no employee entitlements are outstanding". Further, under the terms of s 556(1A) of the Corporations Act , the amount of outstanding entitlements to Mr Mark Tonge in respect of the period when he was a director of the company which would enjoy any priority in the event of a winding up is subject to a cap of $2,000. It was for those who would wish to engender the satisfaction that it was in the interests of creditors for the administration to continue so as thereby to occasion an adjournment to resolve or explain such seeming inconsistencies. It has been known since 30 October 2009 that it would be necessary to engender such satisfaction on 24 November 2009.


case_text: Australian Securities and Investments Commission v Storm Financial Limited (Receivers and Managers Appointed) (Administrators Appointed) (2009) 71 ACSR 81 at [20]-[27], I canvassed authorities touching upon the question of the judicial satisfaction to which s 440A(2) of the Corporations Act refers. I shall not repeat afresh what is there stated. The subsection requires that there be some persuasive case that it is in the interests of creditors for a company to continue under administration. On analysis, for reasons given above, the material now to hand reveals no such case. Rather, it reveals a situation where creditors may come to vote at the meeting on the false premise that there is a substantial benefit being conferred in relation to the deed by Mr James Tonge's offer of subordination and more generally on the basis of an absence of consideration of the ramifications of the company's having acted as the trustee of the Barr Trust. I note that the administrators observe in the draft report that: "it is inappropriate for the administration to end and the control of the company returned to its director. The company has ceased trading and has significantly more liabilities than assets". So far as the objects of Pt 5.3A of the Corporations Act are relevant, that observation eliminates as a factor telling in favour of its being in the interests of creditors for the administration to continue that this course will "maximise the chances of the company, or as much as possible of its business, continuing in existence" (s 435A(a)). These matters are in themselves enough to dissuade me from satisfaction that it is in the interests of creditors for the company to continue under administration. There is another consideration that underscores that view.


case_text: Deputy Commissioner also pointed to the absence of any particular evidence as to the nature and extent of voidable payments which a liquidator might recover for the benefit of creditors. He also drew attention to the releases found in cl 11.5 of the proposed deed of company arrangement and submitted that, having regard to City of Swan v Lehman Brothers Australia Limited (subject to a Deed of Company Arrangement) (2009) 260 ALR 199 (City of Swan v Lehman Brothers Australia Limited), such a term "may be contrary to the rights of creditors and render the term void". As against this, attention was directed to the recommendation, albeit voiced only in a draft report, of the administrators that it is in the interests of the company's creditors to accept the proposal for a deed of company arrangement. Yet the presence, in the draft report, of what I have described as significant omissions in terms of an analysis of the ramifications of the company's having acted as the trustee of the Barr Trust detracts from giving weight to that recommendation. Indeed, without such an analysis, the draft report is apt to mislead as to the benefits of the proposed deed. The want of any appearance by or on behalf of the administrators meant that I did not have the benefit of submissions from them as to such ramifications or those omissions. In fairness to the administrators, it must be said that the report is but a draft. I do not in truth have any evidence as to the recommendation that the administrators are finally disposed to make or their reasons for such a recommendation. There is no presumption, arising from the presence of Pt 5.3A in the Corporations Act , in favour of allowing the administration to continue so as to allow a vote to be taken at the meeting proposed to be held on 2 December 2009. Rather, what is offered by that Part of the Corporations Act is an alternative to liquidation but an alternative which is regulated by the provisions of that Part. Of course the object of Pt 5.3A of the Corporations Act as expressed in s 435A must be borne in mind, but the question for immediate resolution remains that posed by another of the Part's provisions, s 440A(2). In City of Swan v Lehman Brothers Australia , supra, it was the opinion of each of the judges comprising the Full Court that Pt 5.3A of the Corporations Act could not be employed by creditors so as to prevent the exercise by some of their number of such legal rights as they had against persons other than the company the subject of the deed of company arrangement: (see at [4], [92] and [151]). Clause 11.5 seeks to achieve this so far as Mr Mark Tonge is concerned. That clause seems to me to be an essential feature of the proposed deed. Though City of Swan v Lehman Brothers Australia Limited is presently the subject of as yet unheard applications for special leave to appeal to the High Court, I am for the moment bound to follow the views expressed in the Full Court. For this additional reason, I am not satisfied that it is in the interests of creditors for the company to continue under administration. It does not axiomatically follow that the winding up application must proceed. However, there was nothing put forward that might enliven a residual discretion to adjourn the hearing of the winding up application. To the contrary, it is in the public interest that an insolvent corporation be wound up. I note that Mr Gregory Michael Maloney, an official liquidator, has consented to be the liquidator of the company in the event that a winding up order is made. There was no submission made to me that I should instead appoint the present administrators. There are doubtless some advantages to be gained from the work which they have already undertaken but I do not assume that they will deprive Mr Maloney of that benefit. There may equally be some advantages in a fresh mind being brought to bear on the subject of recoveries for the benefit of creditors. I see no reason not to appoint Mr Maloney as requested by the Deputy Commissioner.


case_text: In relation to the principal question, namely, the appellant's fear of persecution for breach of China's "one-child policy", the Tribunal accepted that the appellant had breached the policy, but went on to state that it was satisfied that any harm which may be suffered by the appellant was pursuant to a law of a general application. Accordingly, after referring to the principle discussed by the High Court in Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4 ; (1997) 190 CLR 225 at 233 (per Brennan CJ) and 258 (per McHugh J) that the enforcement of a generally applicable law does not ordinarily constitute persecution for the purposes of the Refugees Convention, the Tribunal in the present case formed the view that the law concerning China's "one-child policy" was a law of general application, and that the appellant did not have a well-founded fear of persecution arising out of the existence of that law. 6 The appellant disputed the uniformity and generality of the application of China's "one-child policy" on the basis that the law was applied differently as between different ethnic groups and regions in China. However, the Tribunal accepted that the law was one of general application and reasoned that, without evidence of selectivity in its enforcement, such a law amounts to no more than a non-discriminatory law and, therefore, on the High Court authority, would not give rise to circumstances warranting the grant of a protection visa. 7 The appellant, in his notice of appeal, raises two other grounds. The first is that he was denied natural justice because the Tribunal did not give him particulars of certain information which constituted its reason or part of its reason for affirming the decision under review. None of the brief submissions advanced in the notice of appeal make out the allegation embodied in this ground. The second ground is that the Federal Magistrate failed to find that the Tribunal erred because it asked incorrect questions. There is no substance in this ground because it is apparent on a fair reading of the Tribunal's reasons for decision that it not only asked the correct questions but also directed its attention to the crucial aspects of the appellant's claim, namely, China's "one-child policy" and its general application.


case_text: In the course of submissions, the applicants suggested that they should be awarded costs on a solicitor and client basis, but there are no circumstances in this case which warrant such an order ( Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; NMFM Property Pty Ltd v Citibank Ltd (No 11) [2001] FCA 480 ; (2001) 109 FCR 77.


case_text: The majority (Gaudron, Gummow and Kirby JJ) took a broader view of the exceptions to the usual order or circumstances in which it is not made. Gaudron and Gummow JJ said (at 88 [40]): There is no absolute rule with respect to the exercise of the power conferred by a provision such as s 69 of the Court Act that, in the absence of disentitling conduct, a successful party is to be compensated by the unsuccessful party. Nor is there any rule that there is no jurisdiction to order a successful party to bear the costs of the unsuccessful party. (See also at 120-123 [134] per Kirby J and Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56 at [26] per Gleeson CJ, Gummow, Hayne and Crennan JJ.) 11 The observations of the High Court were made in the context of s 69(2) of the Land and Environment Court Act 1979 (NSW), but I think it is clear enough that those observations apply equally to the empowering provision in this case, namely, s 43 of the Federal Court of Australia Act 1976 (Cth). 12 The cross-respondents Mr Michael Gargan, Selected Seeds and Top End Rural Supplies submit that the usual order should be made in this case. In the course of their submissions they also submitted that the application for separate trials was premature. 13 The applicants submit that costs should be awarded in their favour because the application would have succeeded had Selected Seeds (in its application for leave to defend) not put forward an arguable plea of proportionate liability on 25 July 2007. There is an analogy here with costs thrown away. The applicants submit that their costs associated with the application are in effect wasted costs because had Selected Seeds raised the arguable plea of proportionate liability earlier, they would not have been incurred (see the discussion of costs thrown away in G E Dal Pont, Law of Costs (2003) [p 23] [14.36]). 14 The relevant events in chronological order are as follows. 15 The applicants commenced this proceeding on 3 April 2006, and issued their application for an order for separate trials on 24 November 2006. As at the latter date, Landmark had filed a defence and issued a cross-claim against Mr Michael Gargan. On 15 September 2006, Mr Michael Gargan issued cross-claims against Simon and Kate Gargan, Selected Seeds, Australian Premium Seeds Pty Ltd, Seed Testing Laboratory of Australia Pty Ltd, and the State of Queensland. On 16 November 2006, Selected Seeds issued cross-claims against Simon and Kate Gargan and Seed Testing Laboratory of Australia Pty Ltd and a new party to the proceeding, Top End Rural Supplies Pty Ltd. 16 It is reasonable to infer that the applicants issued their application after the cross-claims were issued, and after it had become apparent that the whole proceeding would not be ready for trial for some time and, in the applicants' view, would involve a number of issues which were not issues in their claim against Landmark.


case_title: NMFM Property Pty Ltd v Citibank Ltd (No 11) [2001] FCA 480 ; (2001) 109 FCR 77


case_text: The application was unsuccessful. The usual order as to costs in those circumstances is that the costs of the successful party to an application are paid by the unsuccessful party: Oshlack v Richmond River Council [1998] HCA 11 ; (1998) 193 CLR 72 (" Oshlack ") at 96-97 [66]-[68] per McHugh J. There are exceptions to the usual order or circumstances in which it is not made. The difference between the majority and minority in Oshlack was as to the width of the exceptions to the usual order or circumstances in which it is not made. McHugh J (with whom Brennan CJ was in general agreement) was in the minority and he said (at 97-98 [69]-[70]) (footnotes omitted): The traditional exceptions to the usual order as to costs focus on the conduct of the successful party which disentitles it to the beneficial exercise of the discretion. In Anglo-Cyprian Trade Agencies Ltd v Paphos Wine Industries Ltd , Devlin J formulated the relevant principle as follows: "No doubt, the ordinary rule is that, where a plaintiff has been successful, he ought not to be deprived of his costs, or, at any rate, made to pay the costs of the other side, unless he has been guilty of some sort of misconduct." 'Misconduct' in this context means misconduct relating to the litigation, or the circumstances leading up to the litigation. Thus, the court may properly depart from the usual order as to costs when the successful party by its lax conduct effectively invites the litigation; unnecessarily protracts the proceedings; succeeds on a point not argued before a lower court; prosecutes the matter solely for the purpose of increasing the costs recoverable; or obtains relief which the unsuccessful party had already offered in settlement of the dispute. Apart from anomalous examples in the equity jurisdiction, there are very few, if any, exceptions to the usual order as to costs outside the area of disentitling conduct.


case_text: I published reasons for making those orders: Shrimp v Landmark Operations Limited [2007] FCA 1468 and those reasons should be read with these reasons. 5 The relevant parties have now made submissions on the questions of costs reserved in the above orders. Having considered the submissions, I will make the following orders as to costs: 1. On the applicants' notice of motion dated 24 November 2007: 1. Landmark Operations Limited, Mr Michael Gargan, Selected Seeds Pty Ltd and Top End Rural Supplies Pty Ltd be jointly and severally liable to pay the applicants' costs of and incidental to the notice of motion to be taxed in default of agreement. 2. Each of the parties liable under the above order be at liberty to apply for orders as to the appropriate contribution to the said costs as between them. 2. On Selected Seeds Pty Ltd's notice of motion dated 29 March 2007 the costs of the notice of motion be reserved save and except that there be no order as to the costs of the hearing on 13 July 2007. Similar orders to those to be made on Selected Seeds' notice of motion dated 29 March 2007 will be made on the notices of motion of Top End Rural Supplies and Mr Michael Gargan, respectively. 6 My reasons for making these orders follow.


case_text: Before leaving the form of orders, it is necessary to address a submission made by Murdaca that, on remittal, the AAT's findings of fact in relation to particular corporations should not be re-agitated. The way in which the AAT conducts a review of the disqualification is prescribed by the AAT Act and the authorities that have considered it. For present purposes, it is sufficient to note that the question for the AAT is "not whether the decision which the decision-maker made was the correct or preferable one on the material before him . The question for the determination of the [AAT] is whether that decision was the correct or preferable one on the material before the [AAT] ": Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589 and Shi v Migration Agents Registration Authority [2008] HCA 31 at [98] - [101] . Where, as here, there is no statutory provision confining the AAT to the material before ASIC, the material before the AAT on remittal may include such information about conduct and events that occurred after the decision under review as exists at the time the AAT makes its decision : Shi .


case_text: As those earlier decisions make clear, the preconditions to the operation of the section are just that preconditions. For example, ASIC is not denied jurisdiction if the matters contained in a s 533 report have been wholly or partly rectified: Jorgensen v Australian Securities and Investments Commission (1999) 30 ACSR 481 at 483 and Dwyer v National Companies and Securities Commission (1988) 13 ACLR 716 at 720. As Heerey J said in Jorgensen , once s 533 reports have been lodged regarding two or more relevant corporations in respect of which the person was an officer within the previous seven years, the jurisdiction to make the order is established: at 483. Whether the matters in the report have been wholly or partly rectified is a matter that goes to the merits of whether ASIC, or in this case the AAT standing in the shoes of ASIC, should exercise the jurisdiction to make a disqualification order, not the existence of that jurisdiction.


case_text: "Officer" of a corporation is defined in s 9 of the Act and is in analogous terms. "Officer" includes: (a) a director or secretary of the corporation; or (b) a person: (i) who makes, or participates in making, decisions that affect the whole, or a substantial part, of the business of the corporation; or (ii) who has the capacity to affect significantly the corporation's financial standing; or (iii) in accordance with whose instructions or wishes the directors of the corporation are accustomed to act (excluding advice given by the person in the proper performance of functions attaching to the person's professional capacity or their business relationship with the directors or the corporation); or ... A person (not a director of a corporation) may be disqualified from managing a corporation if they are otherwise involved in, or participate in, the management of the corporation in the prescribed ways. These latter capacities are sometimes described as being a "deemed director" or a "shadow director": Ho v Akai Pty Ltd (in liq) [2006] FCAFC 159 ; (2006) 24 ACLC 1526. Such descriptions can, at times, be misleading. Names and labels aside, what is required is a critical assessment of the way in which a corporation is managed and then an assessment as to whether the conduct of the person concerned falls within one or more of the categories identified. 12 Returning to the substantive provision at issue, s 206F(1)(a)(ii) specifies two conditions to be satisfied "within 7 years immediately before ASIC gives a notice under paragraph (b)(i)" (emphasis added). The conditions are: (1) the person must have been an officer of 2 or more corporations; and (2) while the person was an officer, or within 12 months after the person ceased to be an officer of those corporations, each of the corporations was wound up and a liquidator lodged a report under s 533(1) of the Act about the corporation's inability to pay its debts . 13 Section 206F , in its current form, was introduced as part of the Corporate Law Economic Reform Program Bill 1998 (Cth) ("CLERP"). The predecessor to s 206F was s 600 of the Corporations Law ("the Law"). Although the language of the sections is not identical, a number of earlier decisions that considered s 600 of the Law continue to be of assistance.


case_text: As those earlier decisions make clear, the preconditions to the operation of the section are just that preconditions. For example, ASIC is not denied jurisdiction if the matters contained in a s 533 report have been wholly or partly rectified: Jorgensen v Australian Securities and Investments Commission (1999) 30 ACSR 481 at 483 and Dwyer v National Companies and Securities Commission (1988) 13 ACLR 716 at 720. As Heerey J said in Jorgensen , once s 533 reports have been lodged regarding two or more relevant corporations in respect of which the person was an officer within the previous seven years, the jurisdiction to make the order is established: at 483. Whether the matters in the report have been wholly or partly rectified is a matter that goes to the merits of whether ASIC, or in this case the AAT standing in the shoes of ASIC, should exercise the jurisdiction to make a disqualification order, not the existence of that jurisdiction. 16 Moreover, once the preconditions are met, ss 206F(1)(b) of the Act specifies what ASIC must then do. It requires ASIC to give the person a notice in the prescribed form requiring them to demonstrate why they should not be disqualified. In the present case, the notice was in the form set out in [3] above. Prior to reaching a decision, ASIC, in addition to giving the notice, must also make available to the person all the material available to ASIC on which the decision will be based and provide the person with an opportunity to respond to, make submissions and call evidence in relation to the material before ASIC: Laycock v Forbes (1997) 150 ALR 186 at 193-94. That does not necessarily mean an oral hearing: Jorgensen at 486.


case_title: Laycock v Forbes (1997) 150 ALR 186

case_text: Moreover, once the preconditions are met, ss 206F(1)(b) of the Act specifies what ASIC must then do. It requires ASIC to give the person a notice in the prescribed form requiring them to demonstrate why they should not be disqualified. In the present case, the notice was in the form set out in [3] above. Prior to reaching a decision, ASIC, in addition to giving the notice, must also make available to the person all the material available to ASIC on which the decision will be based and provide the person with an opportunity to respond to, make submissions and call evidence in relation to the material before ASIC: Laycock v Forbes (1997) 150 ALR 186 at 193-94. That does not necessarily mean an oral hearing: Jorgensen at 486. 41 Before reaching a decision, the decision-maker must make available to the person all the material available to it on which the decision will be based and provide the person with an opportunity to respond to, make submissions and call evidence in relation to the material before ASIC: Laycock . Provided that proper notice and opportunity to be heard are given, the fact that a relevant matter is not stated in the initial s 206F notice will not in itself provide a basis for consideration of that matter to be excluded. That obligation to provide due process is an obligation which exists separately from (though it is not unrelated to) the requirement to issue the notice. A s 206F(1)(b) notice is merely the initial way in which ASIC puts certain of those matters before the person in respect of whom a disqualification order is being considered. That view is fortified by the fact that s 206F(2) provides that ASIC is to proceed to determine whether the disqualification is justified by reference to prescribed and authorised matters including the following authorised matters: (i) the person's conduct in relation to the management, business or property of any corporation; and (ii) whether the disqualification would be in the public interest; and (iii) any other matter that ASIC considers appropriate. As s 206F(2)(i) expressly provides, ASIC is authorised to have regard to a person's conduct in relation to any corporation, whether or not that corporation is listed in the notice. Murdaca's complaint about the form of the notice is also without foundation. 42 Murdaca's third contention was that ASIC had to satisfy itself as to the merits of the matters contained in the s 553 reports as a precondition to the exercise of the power to disqualify Murdaca from managing a corporation. That contention is also rejected. As noted earlier (see [17]), s 206F has a structural logic and operation pursuant to which the jurisdictional analysis and merits analysis are separate. 43 Section 206F(1)(a) provides the filter if a person has been an officer of two or more corporations within the last seven years where the liquidator of each company has filed a s 533 report - then ASIC is entitled to serve a notice on that person requiring them to demonstrate why they should not be disqualified. The person served with such notice has a choice. They may take the opportunity (see [16]) to demonstrate why they should not be disqualified or they may choose to stand silent. The contents of the s 533 reports will be before ASIC. Absent a challenge to the contents of a s 533 report (in whole or in part) or material in the possession of ASIC casting doubt on the veracity of a s 533 report, I can identify no reason why ASIC should be required to conduct some further or separate enquiry to verify the matters contained in a s 533 report prepared by a liquidator of a company. If there are matters contained in a s 533 report that a person subject to a possible disqualification order seeks to challenge, then the person will have notice of those matters and an opportunity to address them.


case_text: To understand why, it is necessary to return to the basic structural provisions of the AAT Act and the authorities explaining those provisions. Section 43(1) of the AAT Act gives to the AAT "all the powers and discretions that are conferred by any relevant enactment on the person who made the decision...". Important consequences flow from that provision. It is all the "powers and discretions" which ASIC had when making the disqualification order, not the procedures which bind ASIC, to which the AAT accedes: cf Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed [2005] FCAFC 58 ; (2005) 143 FCR 314 at [41] and [44]. The AAT's procedures are prescribed by s 39 of the AAT Act : see also Sullivan v Secretary, Department of Transport (1978) 1 ALD 383 at 402-403. As a result, any failure on the part of ASIC to comply with its statutory procedures will not deprive the AAT of statutory authority to deal with an application for review of the decision of ASIC. Any such defect is "cured" by the AAT when an applicant is made aware of the substance of the allegation made against them and the AAT provides them with an opportunity to respond to the allegations: eg Zubair v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 248 ; (2004) 139 FCR 344 at [32] .


case_title: Shi v Migration Agents Registration Authority [2008] HCA 31


case_title: Sullivan v Secretary, Department of Transport (1978) 1 ALD 383


case_text: I should note that it is now settled that ASIC does not exercise the judicial power of the Commonwealth when it acts under s 206F: Visnic v Australian Securities and Investments Commission [2007] HCA 24 ; (2007) 231 CLR 381. 10 The phrase "managing corporations" is addressed in s 206A of the Act . It provides in s 206A(1) that a person disqualified from managing corporations under Pt 2D.6 commits an offence if: (a) they make, or participate in making, decisions that affect the whole, or a substantial part, of the business of the corporation; or (b) they exercise the capacity to affect significantly the corporation's financial standing; or (c) they communicate instructions or wishes (other than advice given by the person in the proper performance of functions attaching to the person's professional capacity or their business relationship with the directors or the corporation) to the directors of the corporation: (i) knowing that the directors are accustomed to act in accordance with the person's instructions or wishes; or (ii) intending that the directors will act in accordance with those instructions or wishes.


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


case_text: recently, in Re Bosnjak Holdings Pty Ltd [2005] NSWSC 527 , Young CJ in Eq came to the view that the power under section 447A is wide enough to authorise an adjournment for a further 60 days from the period set out in the statute. His Honour said that that is the maximum which should ordinarily be allowed. Section 439B(2) now states that the period of the adjournment, or the total periods of adjournment, must not exceed 45 business days. Here, the section 439A meeting was convened on 20 February 2009 and there have been further adjournments as mentioned above.


case_text: Re LOCM Pty Ltd (Administrators Appointed) (1997) 79 FCR 35 , Goldberg J came to the view that the court has power under section 447A to make an order extending the time fixed by section 439B(2). His Honour was of the view that the effect of the authorities was that it was not appropriate to extend the period for more than the 60 days which was then the maximum provided under section 439B(2). Goldberg J considered in some detail the authorities which have dealt with the power under section 447A. The adjournment which is now sought is 40 business days from 20 April 2009. It may be argued that this period is a significant extension of the period of 45 business days from the date of the meeting prescribed by s 439B(2) , but even if that is so, it is my view that the authorities to which Goldberg J referred in Re LOCM are wide enough to permit the order which is sought. His Honour observed that the power under section 447A is not limited to the operation of filling in gaps in the legislative scheme but that its operation enables the alteration of the operation of a provision in Part 5.3A in relation to a particular company, in particular circumstances.


case_text: is true, of course, as the authorities have established, that the legislative intention is that administrations under Part 5.3A are to proceed expeditiously and that the spirit of Part 5.3A is to prevent administrations from being unduly extended. Nevertheless, that needs to be balanced against the policy expressed in a number of the leading authorities that the court ought also to bear in mind the interest of the creditors in obtaining the possibility of a greater dividend than that which would follow from a making of a winding-up order; see for example Mann v Abruzzi Sports Club Ltd (1994) 12 ACSR 611 at 613. Here, the creditors have requested the administrator to grant an extension up to 1 June but for reasons mentioned above, the administrator has taken the view that a slightly longer period may be required. In the particular circumstances of this case, it seems to me to be appropriate to exercise the power conferred under 447A to make the order which is sought. I will therefore make orders in accordance with the draft orders provided to me. I will sign and date the orders, in accordance with the draft dated 27 April 2009 and that will be placed with the court papers. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson. Associate: Dated: 30 April 2009 Solicitor for the Plaintiff: Shaw Reynolds Bowen & Gerathy Date of Hearing: 27 April 2009 Date of Judgment: 27 April 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/427.html


case_text: The position advanced by the Respondent Minister, that review is available where there has been a failure to make inquiries, is consistent with the proposition that jurisdictional error may be exposed by a failure to inquire and that such a failure may render a decision manifestly unreasonable: Minister for Immigration and Citizenship v Le [2007] FCA 1318 at [60] , [2007] FCA 1318 ; 164 FCR 151 at 172 3. Her Honour Justice Kenny there observed: [60] This takes me to the sixth of the Minister's grounds on the hearing of the appeal. On the one hand, the authorities establish that the Tribunal has no general obligation to initiate enquiries or to make out an applicant's case for him or her. These authorities stretch back over the life of the Tribunal... On the other hand, there is authority for the limited proposition that, in certain rare or exceptional circumstances, the Tribunal's failure to enquire may ground a finding of jurisdictional error because the failure may render the ensuing decision manifestly unreasonable in the sense used in Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223 (Wednesbury Corporation). [61] In Wednesbury Corporation [1948] 1 KB at 230, Lord Greene MR summarised what he saw as a fundamental common law principle when he said "[i]t is true to say that, if a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere". He added that "to prove a case of that kind would require something overwhelming". A finding of jurisdictional error on the ground of unreasonableness is rare compared with other grounds: see Applicant M17 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1364 at [29] per North J. It is sometimes said that there must be something exceptional about the case to attract the ground. [62] Although the position in Australia may differ from that in England, the decision in Wednesbury Corporation [1948] 1 KB 223 would support the proposition that an exercise of power that is unreasonable in this sense may ground a finding of jurisdictional error. ... [63] The concept of vitiating unreasonableness has been extended to the manner in which a decision was made. Thus, a failure by a decision-maker to obtain important information on a critical issue, which the decision-maker knows or ought reasonably to know is readily available, may be characterised as so unreasonable that no reasonable decision-maker would proceeded to make the decision without making the enquiry... In this circumstance what vitiates the decision is the manner in which it was made. Since this is a limited proposition, it does not conflict with the larger statement that the Tribunal is under no general duty with respect to making enquiries... Appl'd: Bunnag v Minister for Immigration and Citizenship [2008] FCA 357 at [36] per McKerracher J. In circumstances where a migration agent forwards by way of facsimile a cover sheet together with a five page submission and where only the cover sheet is received, it has been held to be unreasonable for the Tribunal not to inquire about the missing pages: SZJBA v Minister for Immigration and Citizenship [2007] FCA 1592 , 164 FCR 14 per Allsop J.


case_title: C A Henschke & Co v Rosemount Estates Pty Ltd [2000] FCA 1539 , 52 IPR 42

case_text: In some circumstances it may be accepted that an argument may be permitted to be raised even though it has been " unequivocally disclaimed " before the trial judge: eg, C A Henschke & Co v Rosemount Estates Pty Ltd [2000] FCA 1539 at [32] [35], [2000] FCA 1539 ; 52 IPR 42 at 57 61. The argument there sought to be raised on appeal was an argument important to trade mark law and one where it was conceded that no further evidence would have been relied upon had the argument been pursued at trial. 36 In the present appeal, if the s 91R(3) argument is to be pursued, no further evidence is required to be adduced on appeal. But, and whatever other difficulties would otherwise have been confronted, a fundamental difficulty is that the argument is one without substance.


case_text: A party is normally bound by the manner in which it has previously conducted its case: Metwally v University of Wollongong [1985] HCA 28 ; (1985) 59 ALJR 481. Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ there observed: It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so. Appl'd: Gomez v Minister for Immigration and Multicultural Affairs [2002] FCAFC 105 at [18] , [2002] FCAFC 105 ; 190 ALR 543 at 548 9 per Hill, O'Loughlin and Tamberlin JJ. Similarly, in Coulton v Holcombe [1986] HCA 33 ; (1986) 162 CLR 1 at 7 Gibbs CJ, Wilson, Brennan and Dawson JJ observed: It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish. The importance of litigants, especially in the present statutory context, raising all arguments in need of resolution in the Federal Magistrates Court cannot be underestimated. In SZKMS v Minister for Immigration and Citizenship [2008] FCA 499 Lander J referred to the appellate jurisdiction of this Court being exercised by a single judge pursuant to s 25(1AA) of the Federal Court of Australia Act 1976 (Cth) and continued: [24] The appellate process is to correct error. If a party is entitled to raise issues for the first time on appeal, the appeal court will become de facto the primary court. That is undesirable. It is particularly undesirable where the appellate jurisdiction of the Court is being exercised by a single judge and any right of appeal from that single judge is to the High Court. If a party is entitled to raise an issue for the first time on appeal in this Court, the High Court will be burdened by applications for leave to appeal from judges sitting alone who have not had their decision reviewed. That must be particularly undesirable from the High Court's point of view. [25] Moreover, to allow new grounds of appeal is to defeat the purpose of the legislation which requires that judicial review of a decision of the Refugee Review Tribunal to be within solely the jurisdiction of the Federal Magistrates Court. If new grounds are advanced on appeal, it effectively means that the jurisdiction is being exercised by this Court.


case_text: The circumstances in which a decision of the Tribunal should be set aside by reason of a failure to make inquiries, it is acknowledged, may be a confined category of case: Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47 ; (1985) 6 FCR 155. Wilcox J there observed at 169 70: ... The circumstances under which a decision will be invalid for failure to inquire are, I think, strictly limited. It is no part of the duty of the decision-maker to make the applicant's case for him. It is not enough that the court find that the sounder course would have been to make inquiries. But, in a case where it is obvious that material is readily available which is centrally relevant to the decision to be made, it seems to me that to proceed to a decision without making any attempt to obtain that information may properly be described as an exercise of the decision-making power in a manner so unreasonable that no reasonable person would have so exercised it. ... This decision was subsequently endorsed by the Full Court: Luu v Renevier (1989) 91 ALR 39. See also: Tickner v Bropho [1993] FCA 208 ; (1993) 40 FCR 183 at 197 8 per Black CJ. Subsequently in Foxtel Management Pty Ltd v Australian Competition and Consumer Commission [2000] FCA 589 , 173 ALR 362 at 417 Wilcox J returned to his earlier decision in Prasad and further observed: [214] ... It will be a relatively rare case in which a statutory decision is vitiated because of the decision-maker's failure to make inquiries. It will need to be apparent that relevant material was readily available to the decision-maker, but ignored. The circumstances in which an obligation may be imposed upon an administrator to make further inquiries is thus repeatedly said to be " strictly limited ": Wecker v Secretary, Department of Education Science & Training [2008] FCAFC 108 at [109] per Greenwood J (Weinberg J agreeing). And the fact that it is no part of the task of the decision-maker to make out an applicant's case is also repeatedly recognised -- it was referred to at the outset by Wilcox J in Prasad and subsequently emphasised: eg, Luu v Minister for Immigration and Multicultural Affairs [2002] FCAFC 369 at [50] , [2002] FCAFC 369 ; 127 FCR 24 at 40 1 per Gray, North and Mansfield JJ.


case_title: Gomez v Minister for Immigration and Multicultural Affairs [2002] FCAFC 105 , 190 ALR 543


case_title: Iyer v Minister for Immigration and Multicultural Affairs [2001] FCA 929 , 192 ALR 71

case_text: More generally, there is a legitimate interest in public law matters being resolved in a timely and efficient manner: cf Iyer v Minister for Immigration and Multicultural Affairs [2001] FCA 929 at [62] , [2001] FCA 929 ; 192 ALR 71 at 86 per Gyles J.


case_title: Li v Minister for Immigration and Citizenship [2007] FCA 1098 , 96 ALD 361

case_text: There was, however, no opposition to advancing the submission as to a failure to make inquiries in terms of the decision being unreasonable. So structured, the dispute centred upon whether or not it was unreasonable not to have made further inquiries. No submission was advanced on behalf of the Appellant, nor could it have been advanced, that the power of the Tribunal to make further inquiries imposed upon it " any duty or obligation to do so ": Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 at [43] , [2004] HCA 32 ; 207 ALR 12 at 21 2 per Gummow and Hayne JJ. See also: SZJBA v Minister for Immigration and Citizenship [2007] FCA 1592 at [46] , [2007] FCA 1592 ; 164 FCR 14 at 25 per Allsop J; WAGJ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 277 at [24] . Nor was any submission advanced on behalf of the Respondent Minister that there was not a line of inquiry which was readily available to the Tribunal and centrally relevant to the task being undertaken: eg, Li v Minister for Immigration and Citizenship [2007] FCA 1098 at [28] , [2007] FCA 1098 ; 96 ALD 361 at 367 per Kenny J. The simple submission advanced on behalf of the Respondent Minister was that there was material upon which the Tribunal could justifiably have based its decision and there was, in those circumstances, no duty to inquire further. The response of the Association was disclosed to the now Appellant and he provided his response.


case_title: Luu v Minister for Immigration and Multicultural Affairs [2002] FCAFC 369 , 127 FCR 24


case_title: Luu v Renevier (1989) 91 ALR 39


case_title: Metwally v University of Wollongong [1985] HCA 28 ; (1985) 59 ALJR 481


case_title: Minister for Immigration and Citizenship v Le [2007] FCA 1318 , 164 FCR 151


case_title: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 , 207 ALR 12


case_text: The Tribunal, it may be noted, had no hesitation in suggesting that an inquiry should have been made of the Association and no hesitation in suggesting that an adverse inference could be drawn against the Appellant in the event that he did not consent to such a course. In the absence of any submission now being advanced that a reasonable apprehension of bias may have arisen on the part of the Tribunal by confronting the Appellant with such a choice, it is unnecessary to make any comment upon the course in fact pursued by the Tribunal. But, having embarked upon its preferred course of making an inquiry of the Association, the Tribunal was thereafter committed to making a further inquiry to resolve the diametrically opposed evidence exposed before it. There may be no general obligation to make inquiries to test the authenticity of documents produced to the Tribunal: eg, Minister for Immigration and Ethnic Affairs v Singh (1997) 74 FCR 553. But where an inquiry initiated by the Tribunal itself places the authenticity of documents otherwise before it in issue, further inquiries should be made to attempt to resolve the conflict that emerges. Having confronted the Appellant with the choice of consenting to an inquiry being made of the Association, or an adverse inference possibly being drawn, it was incumbent upon the Tribunal to at least make a further inquiry of the nature now advanced by the Appellant. 30 In the present appeal, it is considered that, as a matter of discretion, leave to raise the argument previously abandoned should be refused. No reason has been advanced to explain why the argument now sought to be advanced was previously abandoned by the now Appellant. In any event, the fifth Ground of Appeal is considered to be without sufficient merit to now warrant the granting of leave. 31 The Application as filed in the Federal Magistrates Court stated the following as one of the grounds there relied upon: The Tribunal fell into jurisdictional error in its application of s 91R(3) of the Migration Act . Before that Court the now Appellant was represented by Counsel. For whatever reason, that ground was there abandoned.


case_title: NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 , 93 ALD 333

case_text: It was understood that Counsel for the Appellant contended that the failure to make inquiries constituted a denial of procedural fairness. That submission was resisted by Counsel for the Respondent Minister. It was his contention that by reason of s 422B of the 1958 Act " there is no scope for the operation of general requirements of procedural fairness outside the specific provisions of Div 4 of Pt 7 of the Act ": NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 at [85] , [2006] FCAFC 195 ; 93 ALD 333 at 353 per Young J (Gyles and Stone JJ agreeing).


case_title: Ngaronoa v Minister for Immigration and Citizenship [2007] FCAFC 196 , 244 ALR 119

case_text: In the absence of some explanation as to why an argument which has previously been raised and abandoned should now be resurrected, it is difficult to see why leave should be given not only to raise the Ground on appeal but to raise it by way of an application to amend the Notice of Appeal as filed, that application being filed only shortly before the hearing of the appeal. The purpose of an appeal is to permit the correction of error, not to permit a fresh application to be brought on different grounds occasioned by a change of counsel: Ngaronoa v Minister for Immigration and Citizenship [2007] FCAFC 196 at [1] per Moore J, at [29] [30] per Bennett and Buchanan JJ; 244 ALR 119.


case_title: Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47 ; (1985) 6 FCR 155


case_text: Whether or not it is unreasonable not to make further inquiries may well depend upon the availability of further information and its importance to the factual issues to be resolved. It may also depend upon the subject matter of inquiry and an assessment of the comparative ability of individuals to provide or to obtain relevant information. There may thus be little (if any) scope for a duty upon a decision-maker to inquire into facts well known to an applicant and facts within his power to adduce: eg, Singh v Minister for Immigration and Ethnic Affairs (1985) 9 ALN N13. In refugee cases, reference may also be made to the comparative difficulty in some circumstances confronted by an applicant seeking refugee status and the comparative ability of decision-makers to elicit further information: cf Taylor S, Informational Deficiencies Affecting Refugee Status Determination: Sources and Solutions (1994) 13 U Tas LR 43. And an assessment as to whether further inquiries should be undertaken may also take into account the importance of a decision upon an individual -- an administrative decision-making process which impacts upon an individual's freedom or a claimed ability to live in freedom may warrant more extensive inquiries being undertaken than one, for example, where the imposition of a modest pecuniary penalty is under consideration. 27 Notwithstanding considerable reservation, it is considered that the Tribunal should have proceeded to make an inquiry of either Mr Nuruzzaman or Mr Hossain or the Association. The issue to which the Certificates were directed was properly accepted by Counsel for the Minister as being centrally relevant to the decision reached. The second Ground of Appeal , construed as it was argued as a contention that the Federal Magistrates Court erred in not concluding that the Tribunal's decision was vitiated by reason of a failure to make inquiries, thus prevails. 28 Any decision which requires a further inquiry to be made, it must be accepted, poses " the risk that an inquiry could never be satisfactorily concluded in the knowledge that another unturned stone may be hiding additional relevant information ": McMillan J, Recent Themes in Judicial Review of Federal Executive Action (1996) 24 FL Rev 347 at 381. But, in the present appeal, a simple phone call may well have been all that was required. The importance of the decision to the Appellant and his family, it is considered, warranted at least such a simple step being undertaken.


case_text: There thereafter followed two hearings before the Refugee Review Tribunal, each of which was set aside by the Federal Magistrates Court. The decision of the Tribunal which was the subject of review by the Federal Magistrates Court now under appeal is that handed down on 19 February 2008. That decision affirmed the decision of the Minister's delegate not to grant a protection visa. The Federal Magistrates Court dismissed the application made to that Court: SZIAI v Minister for Immigration [2008] FMCA 788. 4 The Notice of Appeal as filed in this Court raises four Grounds of Appeal , being contentions that the learned Federal Magistrate: (i) erred by failing to find that the Tribunal committed jurisdictional error in failing to take into account delays and/or the number of occasions on which the now Appellant was required to give evidence, caused by the number of occasions upon which the claim was remitted to the Tribunal, in making credibility findings based on alleged inconsistencies at different hearings; (ii) further erred in finding that the Tribunal had provided a fair proceeding for the now Appellant when relying on evidence from a third-party questioning the authenticity of documents relied on by the Appellant to corroborate his claim to be a member of Ahmadiyya Muslim Jamaat; (iii) further erred in finding that the Tribunal's decision was " not unreasonable ", in circumstances where the decision was affected by apprehended bias; (iv) further erred in finding that the decision of the Tribunal was a privative clause decision, in circumstances where the Tribunal failed to comply with the requirements of ss 424A and 424AA of the Migration Act 1958 (Cth). In addition to these Grounds , the Appellant now seeks leave to amend the existing Notice of Appeal to raise an additional ground, namely: (v) a contravention of s 91R(3) of the Migration Act 1958 (Cth). 5 When the appeal was called on for hearing, Counsel for the Appellant only sought to press the second and fifth Grounds. The remaining Grounds were abandoned.


case_text: In entertaining the current appeal, it is relevant to recall that this Court is exercising appellate jurisdiction, being the jurisdiction conferred by s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth) to hear an appeal from a decision of the Federal Magistrates Court. This Court is not exercising the original jurisdiction conferred by the Commonwealth legislature upon the Federal Magistrates Court by s 476 of the 1958 Act. The original jurisdiction of this Court conferred by s 476A of the 1958 Act is -- and is expressed to be -- a " limited jurisdiction ". See: SZITU v Minister for Immigration & Citizenship [2008] FCA 758 at [32] per Greenwood J. 9 No argument was advanced, however, on behalf of the Respondent Minister denying the jurisdiction of this Court to entertain the fifth Ground sought to be advanced. The Respondent Minister's position was that this Court should decline to entertain the fresh ground -- not as a matter of jurisdiction -- but rather as a matter of discretion. No Notice of Objection to the competency of the appeal had been filed. Counsel for the Respondent Minister submitted that leave to raise an argument as to non-compliance with s 91R(3) should be refused in circumstances where that was an argument raised for resolution before the Federal Magistrates Court, where the now Appellant was there represented by Counsel, and where (for whatever reason) Counsel then appearing for the now Appellant expressly abandoned reliance upon any alleged non-compliance. 10 In the absence of submissions being advanced which properly addressed the concerns as to jurisdiction, and where ultimately it is unnecessary to do so, the present appeal has not been resolved on the basis that this Court does not have jurisdiction to entertain the proposed further Ground of Appeal . If the issue had been pursued, it is considered that it should have been resolved not by a single Judge of this Court but by the Full Court constituted by three Judges.