case_outcome: followed

case_text: Case and a later decision of the High Court in relation to the operation of s 68 of the Judiciary Act , Rhode v DPP (Cth) [1986] HCA 50 ; (1986) 161 CLR 119 ( Rhode's Case), proved influential in persuading Ryan J in Perrier v Kerr (sued in his capacity as Minister for Justice) (VG 865 of 1995, 17 August 1997, unreported) to accept the correctness of the position adopted by the parties in that case which was that the effect of s 68 of the Judiciary Act 1903 was to grant to the respondent Commonwealth Minister (notably not the Attorney-General), in the context of an application for a pardon in respect of a federal offence, the discretionary power to refer that application to the then Full Court of the Victorian Supreme Court pursuant to s 584(a) of the Crimes Act 1958 (Vic) in like manner to the power granted to the Victorian Attorney-General under that provision in respect of a State offence. There was no issue in that case that only the Commonwealth Attorney-General, as opposed to the respondent Minister for Justice, could exercise the power made applicable by the Judiciary Act . His Honour also accepted as correct the further position of the parties, which was that the decision of the Minister for Justice not to refer the matter to the Full Court was a reviewable decision for the purposes of the ADJR Act, even though a decision to refuse the granting of a pardon was not. For completeness, reference should be made to von Einem v Griffin (1998) 72 SASR 110 in which a conception that the feature that the referral power was an adjunct to the prerogative of mercy led a Full Court of the South Australian Supreme Court to hold that a Minister's decision not to refer a case to the Full Court pursuant to that State's analogue of s 672A, s 369(a) of the Criminal Law Consolidation Act 1935 (SA), was not amenable to judicial review. Given that conception, Horwitz v Connor was considered to dictate that result. von Einem v Griffin was not a case where the judicial review application was made under an equivalent of the ADJR Act. In this case though, the view is open that, insofar as he refused to refer the case to the Court of Appeal, the Minister made a decision: under an enactment, namely s 68 of the Judiciary Act , which rendered applicable s 672A of the Queensland Criminal Code ; of an administrative character; and accordingly one to which the ADJR Act applies. von Einem v Griffin is, for this reason alone, distinguishable. Further, as the Court's jurisdiction is sufficiently invoked by the reliance on the ADJR Act, it is unnecessary to decide whether an alternative basis for a judicial review jurisdiction exists having regard to s 75(v) of the Constitution and s 39B of the Judiciary Act and given that the decision is one made under statute by an officer of the Commonwealth. Though Perrier v Kerr , Pepper v Attorney-General (Qld) [No 2] and Eastman v A-G (ACT) are not, strictly, binding, I ought to follow them unless, which is not the case here, I am convinced that they are clearly in error.


case_outcome: considered

case_text: insight into the subject matter, scope and purpose of s 672A(a) is offered by another Queensland Court of Appeal decision, R v Daley; Ex parte Attorney-General (Qld) [2005] QCA 162 , and by earlier Queensland authorities concerning that section referred to by Keane JA, who delivered the principal judgment in that case (Williams and Muir JJA agreeing). His Honour observed: It may be said that this new evidence might have been obtained with reasonable diligence prior to trial so that it would not satisfy the test for the admission of "fresh evidence" enunciated in Ratten v. The Queen [1974] HCA 35 ; (1974) 131 CLR 510 at 516, 517. However that may be, it seems that on a reference under Section 672A, the Court has a broader discretion to ensure that justice is done and is seen to be done. See The Queen v. Young (No 2) [1969] Qd R 566 ; The Queen v. Condren Ex Parte Attorney-General [1991] 1 Qd R 574 at 578, 579. ... [The] issue was not whether Mr Daley's legal representation was incompetent. The issue is whether a miscarriage of justice has occurred. See TKWJ v. The Queen (2002) 202 CLR 124; Ali v. The Queen [2005] HCA 8 ; (2005) 214 ALR 1.


case_outcome: cited

case_text: already noted, s 68 of the Judiciary Act must be read subject to the Constitution : s 15A Acts Interpretation Act . While that provision of the Acts Interpretation Act has a purpose in preserving statutory provisions from invalidity by promoting their construction so as to accord with the limits of constitutional legislative competence, it also serves as a reminder that Commonwealth legislation ought not be construed in a way which ignores constitutionally permissible practices in the discharge of the business of the Executive Government. R v Judd [1919] HCA 9 ; (1919) 26 CLR 168 , O'Reilly v State Bank of Victoria Commissioners (1983) 153 CLR 1 , Attorney-General (Cth) v Foster [1999] FCA 81 ; (1999) 84 FCR 582 , Carltona Ltd v Commissioners of Works [1943] 2 All E R 560 and R v Secretary of State for the Home Department; Ex parte Doody [1993] QB 157 each offer an example of ways in which such practices have been taken into account by the courts in the construction of legislation and with regard to the validity of the exercise of powers by public officials. It is useful also to recall the following observations made by Gleeson CJ in Re Patterson; Ex parte Taylor [2001] HCA 51 ; (2001) 207 CLR 391 at 403, [15] [16] with respect to the provisions in the Constitution concerning the Executive Government of the Commonwealth: For the framers of the Constitution to have descended into greater specificity would have imposed an unnecessary and inappropriate degree of inflexibility upon constitutional arrangements that need to be capable of development and adaptability. The deliberate lack of specificity is demonstrated by the absence of any reference to such prominent features of our system of democratic government as the office of Prime Minister, or the Cabinet. The concept of administration of departments of State, appearing in s 64 , is not further defined. This is hardly surprising. The practices and conventions which promote efficient and effective government administration alter over time, and need to be able to respond to changes in circumstances and in theory.


case_title: R v Martens [2007] QCA 137

case_text: answer that question first requires an understanding of the case made against the Applicant at his trial, of the defence case and of the basis upon which his appeal against conviction to the Court of Appeal failed. These matters are comprehensively canvassed in the judgment of McMurdo P (with whom Holmes JA and Cullinane J agreed) in the disposal by the Court of Appeal of the Applicant's appeal against his conviction: R v Martens [2007] QCA 137. It would only add unnecessarily to the length of these reasons to recite all of what is there stated. Some matters, salient in light of the present proceeding, should be recorded. That the complainant was under 16 years of age at the time of the alleged offence was uncontroversial, as were the facts that the Applicant was an Australian citizen and that he and the complainant were at least on some days, each in Port Moresby between the dates alleged in the indictment. Whether the offence was proved depended very much upon an evaluation by the jury of whether the complainant was to be believed in her account that the Applicant had intercourse with her while they were in Port Moresby. Her evidence was that she had twice flown to Port Moresby with the Applicant in 2001, firstly in March for the purpose of securing a passport to be used by her in later travelling to Australia for educational purposes and secondly, so she said, on a school day after her birthday (10 September) but before Papua New Guinea's Independence Day (16 September), the 2001 celebration of which in Port Moresby she stated she attended. At the trial the Applicant mounted a concerted challenge to the complainant's credibility. His evidence was that there had been but one flight to Port Moresby with the complainant as his passenger. According to him, it was this trip which was made for the purpose of the completion of the complainant's passport application. Apart from his oral evidence to this effect he produced his pilot's log book in which was recorded but one trip to Port Moresby with the complainant, on 10 August 2001. A passport photograph of the complainant endorsed on the reverse with the date 16 August 2001 and a related photographic laboratory receipt dated 11 August 2001 featured in the defence case. The evidence tendered by the prosecution included the complainant's passport which was issued on 24 August 2001.


case_text: High Court has observed of s 68 of the Judiciary Act that it is a "central provision in the administration and enforcement of federal criminal law" which "fulfils an important role in ensuring that federal criminal law is administered in each State upon the same footing as State law and avoids the establishment of two independent systems of justice": R v Murphy [1985] HCA 50 ; (1985) 158 CLR 596 at 617. To this end, s 68 has been interpreted so as to permit the Commonwealth Attorney-General to appeal against a sentence in respect of a federal offence in circumstances where under State law and in respect of a State offence such a right of appeal was conferred upon a State Attorney-General: Peel v R [1971] HCA 59 ; (1971) 125 CLR 447 ( Peel's Case ).


case_title: R v Secretary of State for the Home Department; Ex parte Doody [1993] QB 157


case_text: office of Attorney-General is an ancient one. It evolved because the Sovereign could not appear in person in his courts to plead cases which affected his interests. Hence a need to appear by an attorney: see The Hon LJ King AC, QC , "The Attorney-General, Politics and The Judiciary" (2000) 74 ALJ 444. Conventionally, in relation to the criminal law of a body politic which is a constitutional monarchy, the Crown has the constitutional responsibility for the prosecution of crimes with that prosecutorial function being discharged in the courts on behalf of the Crown by the Attorney-General: R v Wilkes [1770] EngR 34 ; (1768) 4 Burr 2527 ; 97 ER 123. In more modern times, there has been parliamentary recognition that a need for independence from political considerations in the making of a range of prosecutorial decisions is enhanced by consigning the tasks of making decisions in individual cases and representing the Crown in criminal cases to an official removed from politics; a Director of Public Prosecutions. Nonetheless, Ministerial responsibility for the administration of the criminal law and for the office of a Director of Public Prosecutions, in conformity with convention, is usually consigned to the Attorney-General. It is certainly possible to explain the Queensland Parliament's definition of "Crown Law Officer" for the purposes of the Queensland Criminal Code by such considerations. That might be thought to support the Applicant's submission.


case_text: accept therefore that the decision made by the Minister is one to which the ADJR Act applies and that consequently this court has jurisdiction to review the Minister's decision to refuse to refer the case to the Court of Appeal. In so doing, it is unnecessary to decide and I refrain from expressing any view as to whether, were the Minister desirous of having the benefit of the opinion of the Court of Appeal on a point arising in the application for a pardon (for which s 672A(b) of the Queensland Criminal Code prima facie provides) a need to read s 68 of the Judiciary Act subject to the Constitution (s 15A Acts Interpretation Act 1901 (Cth)) (Acts Interpretation Act ) would prevent the application of that part of the provision to a person who sought a pardon in respect of a federal offence. A concern would be whether that application would be prevented by the prohibition, arising from the interpretation of Chapter III of the Constitution favoured in Re Judiciary and Navigation Acts [1921] HCA 20 ; (1921) 29 CLR 257 , against the furnishing of advisory opinions in the exercise of judicial power in federal jurisdiction. That is a subject which may only arise, if at all, in the event not only that the present decision were set aside but the Minister (assuming he is the relevant Commonwealth Minister of State) were disposed to act under s 672A(b), rather than s 672A(a), of the Queensland Criminal Code . The request made by the Applicant in his application and the way it was dealt with by the Minister suggest that it was both intended to be and was treated as one made under s 672A(a) only. Was the Minister empowered to make the decision? The Applicant's argument in respect of this issue was succinct but none the worse for that. There were officers of the Commonwealth whose title corresponded exactly with those State officers named in the definition of "Crown Law Officer" for the purposes of s 672A of the Queensland Criminal Code . That being so, it was submitted that there was no warrant for applying this provision, pursuant to s 68 of the Judiciary Act , "so as [it is] applicable", to enlarge its application so as to embrace the Minister. To the contrary, it was submitted that, having regard to the sensitivity which might attend the pardoning of a person convicted after a jury verdict and subsequent unsuccessful appeal, the choice in the definition of the Attorney-General and the Director of Public Prosecutions may not have been coincidental representing as it did the Crown's First Law Officer on the one hand and the senior independent officer holder charged with responsibility for prosecutions. The Respondent's argument was rather more elaborate. Its starting point was Ch II of the Constitution . Section 62 of the Constitution makes provision for a Federal Executive Council. In turn, s 64 of the Constitution provides for the appointment of members of the Federal Executive Council as Ministers, "the Queen's Ministers of State for the Commonwealth", "to administer such departments of State of the Commonwealth as the Governor-General in Council may establish". Section 65 then materially provides that those Ministers of State "shall hold such offices ... as the Governor-General directs".


case_text: Respondents then pointed to the now accepted position that there is no constitutional prohibition against the appointment of more than one Minister of State to administer a department: Re Patterson; Ex parte Taylor [2001] HCA 51 ; (2001) 207 CLR 391 at 403, [17] ; 415-416; [66], 460, [211]; 498, [320] and 519, [380]; Zoeller v Attorney-General (Cth) (1987) 16 FCR 153 at 165; Attorney-General (Cth) v Foster [1999] FCA 81 ; (1999) 84 FCR 582 at 594; Tervonen v Minister for Justice and Customs [No 2] [2007] FCA 1684 at [128] to [130]. That being so, it was submitted that the Minister was entitled to administer the Judiciary Act , which included the administration of s 672A of the Queensland Criminal Code , to the extent that it was rendered applicable by s 68 of the Judiciary Act to the pardon application made by the Applicant. As already noted, s 68 of the Judiciary Act must be read subject to the Constitution : s 15A Acts Interpretation Act . While that provision of the Acts Interpretation Act has a purpose in preserving statutory provisions from invalidity by promoting their construction so as to accord with the limits of constitutional legislative competence, it also serves as a reminder that Commonwealth legislation ought not be construed in a way which ignores constitutionally permissible practices in the discharge of the business of the Executive Government. R v Judd [1919] HCA 9 ; (1919) 26 CLR 168 , O'Reilly v State Bank of Victoria Commissioners (1983) 153 CLR 1 , Attorney-General (Cth) v Foster [1999] FCA 81 ; (1999) 84 FCR 582 , Carltona Ltd v Commissioners of Works [1943] 2 All E R 560 and R v Secretary of State for the Home Department; Ex parte Doody [1993] QB 157 each offer an example of ways in which such practices have been taken into account by the courts in the construction of legislation and with regard to the validity of the exercise of powers by public officials. It is useful also to recall the following observations made by Gleeson CJ in Re Patterson; Ex parte Taylor [2001] HCA 51 ; (2001) 207 CLR 391 at 403, [15] [16] with respect to the provisions in the Constitution concerning the Executive Government of the Commonwealth: For the framers of the Constitution to have descended into greater specificity would have imposed an unnecessary and inappropriate degree of inflexibility upon constitutional arrangements that need to be capable of development and adaptability. The deliberate lack of specificity is demonstrated by the absence of any reference to such prominent features of our system of democratic government as the office of Prime Minister, or the Cabinet. The concept of administration of departments of State, appearing in s 64 , is not further defined. This is hardly surprising. The practices and conventions which promote efficient and effective government administration alter over time, and need to be able to respond to changes in circumstances and in theory.


case_text: Case and a later decision of the High Court in relation to the operation of s 68 of the Judiciary Act , Rhode v DPP (Cth) [1986] HCA 50 ; (1986) 161 CLR 119 ( Rhode's Case), proved influential in persuading Ryan J in Perrier v Kerr (sued in his capacity as Minister for Justice) (VG 865 of 1995, 17 August 1997, unreported) to accept the correctness of the position adopted by the parties in that case which was that the effect of s 68 of the Judiciary Act 1903 was to grant to the respondent Commonwealth Minister (notably not the Attorney-General), in the context of an application for a pardon in respect of a federal offence, the discretionary power to refer that application to the then Full Court of the Victorian Supreme Court pursuant to s 584(a) of the Crimes Act 1958 (Vic) in like manner to the power granted to the Victorian Attorney-General under that provision in respect of a State offence. There was no issue in that case that only the Commonwealth Attorney-General, as opposed to the respondent Minister for Justice, could exercise the power made applicable by the Judiciary Act . His Honour also accepted as correct the further position of the parties, which was that the decision of the Minister for Justice not to refer the matter to the Full Court was a reviewable decision for the purposes of the ADJR Act, even though a decision to refuse the granting of a pardon was not. Section 68 of the Judiciary Act does not, in terms, refer to any Minister. Rather, it "picks up" provisions of State legislation, which may or may not themselves refer to a State Minister or other official, and applies them "so far as they are applicable to persons who are charged with offences against the laws of the Commonwealth". In so doing, "the adoption of the State law must proceed by analogy", an observation made by Sir Owen Dixon in Williams v The King [No 2] [1934] HCA 19 ; (1934) 50 CLR 551 at 561, which commended itself to Gibbs J (as his Honour then was) in Peel's Case [1971] HCA 59 ; (1971) 125 CLR 447 at 469 and to Gibbs CJ, Mason and Wilson JJ in Rhode's Case [1986] HCA 50 ; (1986) 161 CLR 119 at 124; see also to like effect in that case the separate judgement delivered by Brennan J (1986) 161 CLR at 126-127.


case_text: Respondents then pointed to the now accepted position that there is no constitutional prohibition against the appointment of more than one Minister of State to administer a department: Re Patterson; Ex parte Taylor [2001] HCA 51 ; (2001) 207 CLR 391 at 403, [17] ; 415-416; [66], 460, [211]; 498, [320] and 519, [380]; Zoeller v Attorney-General (Cth) (1987) 16 FCR 153 at 165; Attorney-General (Cth) v Foster [1999] FCA 81 ; (1999) 84 FCR 582 at 594; Tervonen v Minister for Justice and Customs [No 2] [2007] FCA 1684 at [128] to [130]. That being so, it was submitted that the Minister was entitled to administer the Judiciary Act , which included the administration of s 672A of the Queensland Criminal Code , to the extent that it was rendered applicable by s 68 of the Judiciary Act to the pardon application made by the Applicant.


case_text: insight into the subject matter, scope and purpose of s 672A(a) is offered by another Queensland Court of Appeal decision, R v Daley; Ex parte Attorney-General (Qld) [2005] QCA 162 , and by earlier Queensland authorities concerning that section referred to by Keane JA, who delivered the principal judgment in that case (Williams and Muir JJA agreeing). His Honour observed: It may be said that this new evidence might have been obtained with reasonable diligence prior to trial so that it would not satisfy the test for the admission of "fresh evidence" enunciated in Ratten v. The Queen [1974] HCA 35 ; (1974) 131 CLR 510 at 516, 517. However that may be, it seems that on a reference under Section 672A, the Court has a broader discretion to ensure that justice is done and is seen to be done. See The Queen v. Young (No 2) [1969] Qd R 566 ; The Queen v. Condren Ex Parte Attorney-General [1991] 1 Qd R 574 at 578, 579. ... [The] issue was not whether Mr Daley's legal representation was incompetent. The issue is whether a miscarriage of justice has occurred. See TKWJ v. The Queen (2002) 202 CLR 124; Ali v. The Queen [2005] HCA 8 ; (2005) 214 ALR 1. The "broader discretion" to which Keane JA refers in the passage quoted is a discretion possessed by the Court of Appeal on a reference under s 672A to receive and consider evidence even if that evidence might, by the exercise of due diligence, have been produced at the trial: The Queen v. Young (No 2) [1969] Qd R 566 at 571. In the latter case (ibid), the Queensland Court of Criminal Appeal also confirmed a view which had been expressed in an earlier, unreported decision of that court to the effect that, because on a reference under s 672A the court sat judicially, not as an adjunct of the executive, it could only receive admissible evidence. I take that to mean that, though the referral discretion is an adjunct to an administrative power, if the discretion is exercised in favour of a reference the resultant proceeding in the Court of Appeal is judicial in character.


case_title: von Einem v Griffin (1998) 72 SASR 110

case_text: completeness, reference should be made to von Einem v Griffin (1998) 72 SASR 110 in which a conception that the feature that the referral power was an adjunct to the prerogative of mercy led a Full Court of the South Australian Supreme Court to hold that a Minister's decision not to refer a case to the Full Court pursuant to that State's analogue of s 672A, s 369(a) of the Criminal Law Consolidation Act 1935 (SA), was not amenable to judicial review. Given that conception, Horwitz v Connor was considered to dictate that result. von Einem v Griffin was not a case where the judicial review application was made under an equivalent of the ADJR Act. In this case though, the view is open that, insofar as he refused to refer the case to the Court of Appeal, the Minister made a decision: under an enactment, namely s 68 of the Judiciary Act , which rendered applicable s 672A of the Queensland Criminal Code ; of an administrative character; and accordingly one to which the ADJR Act applies. von Einem v Griffin is, for this reason alone, distinguishable. Further, as the Court's jurisdiction is sufficiently invoked by the reliance on the ADJR Act, it is unnecessary to decide whether an alternative basis for a judicial review jurisdiction exists having regard to s 75(v) of the Constitution and s 39B of the Judiciary Act and given that the decision is one made under statute by an officer of the Commonwealth. Though Perrier v Kerr , Pepper v Attorney-General (Qld) [No 2] and Eastman v A-G (ACT) are not, strictly, binding, I ought to follow them unless, which is not the case here, I am convinced that they are clearly in error. These conclusions are, in my opinion, consistent with conclusions reached by Lander J as a member of the Full Court in von Einem v Griffin (1998) 72 SASR 110 at 138-140 concerning the analogous reference power upon the assumption (contrary to the conclusion he reached) that the South Australian Attorney's decision to decline a reference request was amenable to judicial review. His Honour stated: Judicial review would only be available to review the decision whether or not to exercise the discretion and then the subsequent exercise of that discretion to determine whether the exercise of the discretion conformed with the policy scope and objects of the Act. What, then, is the policy or scope and objects of s369. The section has no application unless a petition for mercy has been presented to the Governor. It therefore assumes that the Petitioner has exhausted all of his or her legal rights and that all appeals have been exhausted and the conviction and the sentence must stand according to law. The section further assumes that there may be circumstances, notwithstanding that all appeals have been exhausted, where it would be appropriate to refer this matter back to the Court for further hearing as an appeal. In that respect the section perhaps contemplates that fresh evidence has emerged which might make the conviction unsafe or unsatisfactory. It also contemplates that perhaps a restatement of the law may require the revisiting of a previous decision or the conviction. The policy, purpose and object of s369 is to ensure, so far as practicable, that no person is the victim of a miscarriage of justice. The section has been included to allow for circumstances of the kind to which I have referred so that even if a person has exhausted all that person's rights of appeal, that person will not be the victim of a miscarriage of justice, if later circumstances show that the conviction should not stand for any reason including that it is unsafe and unsatisfactory. It is within that policy and purpose that the Attorney General must act. When a petition is presented to the Governor and referred to the Attorney General apart from advising on the question of mercy, generally, the policy and purpose of s369 is to have the Attorney General apply his mind as to whether or not it would be appropriate to invoke the Court's jurisdiction yet again, notwithstanding that the appeal process has been exhausted, so that the Court may determine whether, in any way, there has been a miscarriage of justice in relation to that petitioner. The policy and purpose of this section is to require the Attorney General to apply his mind as to whether it would be appropriate to refer the matter to the courts in either of the ways mentioned in s369 in case there has been a miscarriage of justice. Any matter relevant to the policy, scope or objects of the section. ... Did The Attorney General Apply The Correct Legal Test? In considering the matters raised in the petition the Attorney had to adopt a criterion to determine whether the material provided could give rise to the invocation of either of the powers contained in s369. He was advised that unless the material referred to in the petition raised a sufficient doubt about the correctness of the decision the appropriate response was to advise His Excellency that it was not proposed to take any further action in respect of the petition. In considering whether the material raised in the petition raised a sufficient doubt about the correctness of the decision he was further advised that the material would not raise such a doubt unless it appears reasonably possible that a miscarriage of justice has occurred. The Attorney General accepted that advice and on the evidence acted upon the criterion to the extent, that unless the material disclosed the reasonable possibility of a miscarriage of justice his proper response was to advise His Excellency to take no further action upon the petition. The plaintiff complained about the test adopted by the Attorney General which he said amounted to a misunderstanding of the legal principles involved in exercising his discretion under this section. Initially the plaintiff argued that the adoption of such a test was an error of law, but I think that it was otherwise said that the criterion adopted was so unreasonable that no sensible person could have adopted the test. If the matter had come before a judge of this Court, after conviction and sentence, for the purpose of obtaining leave to appeal to the Full Court of the Supreme Court, then the test which would have been applied by that judge was whether the ground or grounds of appeal, raised on the application for leave to appeal, were arguable. The plaintiff argued, on this application, that that is the test which the Attorney General should have asked himself in relation to the matters raised on the petition. It was said that to approach the matter any other way amounted to an error of law and was so unreasonable that no sensible person could have adopted the test. Of course, the proposition that a ground of appeal is arguable begs the question: Arguable in what sense? It must be arguable that there has been a miscarriage of justice. It is right, I think, as Mr Abbott submitted, that a single judge in this State will grant leave to appeal from a conviction or sentence if that judge is satisfied that it is arguable there has been a miscarriage of justice. The practice book in this State (Criminal Law South Australia, Butterworths; Judge Lunn) states at para 7115.3: "The test for leave is whether it is at least arguable that the exercise of the trial judge's discretion has miscarried or there could be any real element of injustice to the appellant if leave was refused; McDonald v R (1992) 85 NTR 1." In McDonald v R , Asche CJ relied upon a decision of the Full Court of the Supreme Court of Victoria in R v Broadway (1957) VR 398 and concluded that on an application for leave to appeal the appropriate test should be 'at least an arguable case' (at 3). Asche CJ, however, accepted that it was inappropriate in applications for leave to appeal to lay down rigid and exhaustive criteria. He suggested that another test could be 'that some possible though real element of injustice might be thought to occur if leave were refused' (at 4). He said that the purpose of a provision requiring leave to appeal is to discriminate between the obvious cases where it is clear that the appeal cannot succeed and to allow the others to go forward. Accepting the decision in McDonald v R and the matters to which Asche CJ has referred, it cannot be said that the criteria for granting leave to appeal is necessarily appropriate in determining whether or not a matter should be referred to this Court pursuant to either of the limbs of s369. There is a point of distinction between an application for leave to appeal and a reference under s 369. A matter which is being considered by the Attorney General under s 369 has already been the subject of appeal and all of the rights of appeal have already been exhausted. In any event, it is not self evident to me that the test that it is arguable that there was a miscarriage of justice is any less onerous than the test asked by the Attorney General of himself, i.e. whether there was a reasonable possibility of a miscarriage of justice. It seems to me that the tests, in a sense, ask the same question. A point will not arguably show that there has been a miscarriage of justice unless there is a possibility that there has been a miscarriage of justice and, of course, that possibility must be reasonable. What then of the Minister's consideration of the Applicant's request for a reference?


case_text: 68 of the Judiciary Act does not, in terms, refer to any Minister. Rather, it "picks up" provisions of State legislation, which may or may not themselves refer to a State Minister or other official, and applies them "so far as they are applicable to persons who are charged with offences against the laws of the Commonwealth". In so doing, "the adoption of the State law must proceed by analogy", an observation made by Sir Owen Dixon in Williams v The King [No 2] [1934] HCA 19 ; (1934) 50 CLR 551 at 561, which commended itself to Gibbs J (as his Honour then was) in Peel's Case [1971] HCA 59 ; (1971) 125 CLR 447 at 469 and to Gibbs CJ, Mason and Wilson JJ in Rhode's Case [1986] HCA 50 ; (1986) 161 CLR 119 at 124; see also to like effect in that case the separate judgement delivered by Brennan J (1986) 161 CLR at 126-127.


case_title: Zoeller v Attorney-General (Cth) (1987) 16 FCR 153


case_title: The Hon LJ King AC, QC , "The Attorney-General, Politics and The Judiciary" (2000) 74 Australian Law Journal 444


case_title: Liu v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1170

case_text: The legislation which relevantly governs the issues raised in this appeal is tolerably clear in its effect. Section 116(1)(b) provides that the Minister may cancel a visa if satisfied that its holder "has not complied with a condition of the visa". Section 116(3) provides that in such circumstances the Minister must cancel the visa if there exist prescribed circumstances in which a visa must be cancelled. Clause 2.43(2)(b) of the Regulations relevantly provided, prior to 8 October 2005, that for the proposes of s 116(3) the Minister must cancel a Student (Temporary) Class TU visa if satisfied that the visa holder has not complied with condition 8202. Condition 8202(1) requires the visa holder to comply with sub-clause (2). In order to meet the requirements of sub-clause (2) the visa holder must be enrolled in a registered course: see condition 8202(2)(a). That requirement, as with the other requirements in condition 8202, concerns a continuing state of affairs. In effect, the visa holder is not permitted to cease to be enrolled in such a course: Liu v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1170 at [19] [20]. 21 There is an inexorable and somewhat remorseless logic to this sequence of statutory requirements. The Minister has no discretion in the matter. The Regulations as they stood prior to 8 October 2005 plainly had the potential to operate unfairly. That was subsequently recognised, and clause 2.43 was amended.


case_outcome: applied

case_text: However, there is clear authority for the proposition that the appellant's case must be considered in the light of the law as it stood at the time of the visa cancellation. Both the delegate's decision and the MRT's decision to affirm that decision took place before the amendments came into effect. The appellant cannot call in aid the ameliorated version of the clause because it has no retrospective effect. See the decision of the Full Court in Minister for Immigration and Multicultural and Indigenous Affairs v Zhou [2006] FCAFC 96 ; (2006) 152 FCR 115 at [44] per Ryan, Nicholson and Lander JJ. See also Liyanage v Minister for Immigration and Multicultural Affairs [2006] FCA 1489 per Marshall J.


case_text: However, there is clear authority for the proposition that the appellant's case must be considered in the light of the law as it stood at the time of the visa cancellation. Both the delegate's decision and the MRT's decision to affirm that decision took place before the amendments came into effect. The appellant cannot call in aid the ameliorated version of the clause because it has no retrospective effect. See the decision of the Full Court in Minister for Immigration and Multicultural and Indigenous Affairs v Zhou [2006] FCAFC 96 ; (2006) 152 FCR 115 at [44] per Ryan, Nicholson and Lander JJ. See also Liyanage v Minister for Immigration and Multicultural Affairs [2006] FCA 1489 per Marshall J. 23 It may well be that there is an arguable case to be made in support of one or more of the appellant's grounds of appeal, as set out in the recent notice of appeal. In the end, however, it seems to me to be unnecessary to determine that question. If this matter were remitted, the MRT would, on the authority of Zhou , still be required to consider his case on the basis of the Regulations as they stood prior to 8 October 2005. 24 Ms Welshman submitted that new material might be placed before the MRT which might lead it to conclude that the appellant had not ceased to be enrolled at St Augustine's College as from 31 March 2005. She submitted that it might be possible to attack the process by which the school arrived at its decision to terminate his enrolment. 25 That submission seems to me to have an air of unreality. This case has always proceeded upon the assumption that the appellant's enrolment at St Augustine's College came to an end as at 31 March 2005. I cannot conceive of any circumstances in which the MRT would, or could, arrive at any different conclusion. It follows that if this matter were remitted, the ultimate result of any reconsideration would inevitably be that the delegate's decision would be affirmed.


case_outcome: referred to

case_text: The appellant requires leave to raise new grounds that were not argued before his Honour. The Minister opposes such leave on the basis that it is not expedient in the interests of justice that leave be granted. He submits that the new grounds have no reasonable prospects of success: NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134 ; (2005) 147 FCR 51 per Madgwick J (with whom Conti J agreed) at [162] [175].


case_text: Futility is a well recognised basis upon which a Court will decline to grant judicial review: see SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [29] . In such circumstances relief is refused because the applicant has in fact suffered no injustice since the statutory law compels a particular outcome. 27 Had any of the grounds of appeal that are now sought to be agitated before me been raised before the Federal Magistrate his Honour would undoubtedly have rejected the application for judicial review. That is because it would have been futile to grant the relief sought. 28 There is no basis upon which to grant leave to permit the new grounds to be argued. It would be futile to grant such leave. It also follows that no appealable error can be demonstrated in relation to his Honour's decision to dismiss the application for judicial review. 29 The appeal must be dismissed with costs. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg. Associate: Dated: 8 August 2007 Counsel for the Appellant: Ms K Welshman Counsel for the First Respondent: Mr S Free Solicitor for the Respondent: Clayton Utz Date of Hearing: 8 August 2007 Date of Judgment: 8 August 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1188.html


case_text: It is unnecessary to refer to the many cases which say that where there is no adequate explanation for the failure to take a point before the primary judge, and the point seems to be of doubtful merit, leave should ordinarily be refused. See, however, VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [48] . The real question, so far as leave is concerned, is whether any of the grounds sought to be raised has a reasonable prospect of success. That question cannot be determined without also considering the related issue of whether it would be futile to remit this matter to the MRT for reconsideration.


case_text: Mr Karp contends that what is obvious and relevant to the decision maker may be less so to the appellant, especially if the information is used adversely against him ( Re Minister for Immigration and Multicultural Affairs Ex Parte Miah [2001] HCA 22 ; (2001) 206 CLR 57 at [141] [142]). Further, he contends, there is a requirement to disclose information known to the appellant if any adverse conclusion arrived at would not obviously be open on the known material ( Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591-2). The appellant must be given the opportunity to deal with adverse information that is credible, relevant and significant to seek to establish that it is not credible, not relevant or not sufficiently significant ( Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 ; (2005) 222 ALR 411 at [17] ). 46 The conclusion as to the absence of a racial basis for the looting and destruction of the appellant's family business in May 1998 impacts upon the Tribunal's characterisation of the events of September 1999 and its conclusion that ' even if there were a further riot, it is no more than speculation that ethnic Chinese might be its target because of their race and, even if they were, the chance is remote that [the appellant] may face serious harm during it '. It also impacts on the failure by the Tribunal to consider whether there had been a relevant change between May 1998 and September 1999 even in the context of a change in political leadership and policies. To the extent that the Tribunal relied upon evidence that some ethnic Chinese were not targeted because of their race but instead suffered harm in the context of a breakdown of law and order, that evidence was adverse information that was "credible, relevant and significant" in the sense discussed in VEAL at [16] to [17]. The Tribunal was obliged to give the appellant the opportunity to deal with it. Its failure to do so resulted in a denial of natural justice and jurisdictional error.


case_text: Mr Karp contends that what is obvious and relevant to the decision maker may be less so to the appellant, especially if the information is used adversely against him ( Re Minister for Immigration and Multicultural Affairs Ex Parte Miah [2001] HCA 22 ; (2001) 206 CLR 57 at [141] [142]). Further, he contends, there is a requirement to disclose information known to the appellant if any adverse conclusion arrived at would not obviously be open on the known material ( Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591-2). The appellant must be given the opportunity to deal with adverse information that is credible, relevant and significant to seek to establish that it is not credible, not relevant or not sufficiently significant ( Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 ; (2005) 222 ALR 411 at [17] ).


case_text: The Federal Magistrate considered that the Tribunal complied with its obligations to provide natural justice. His Honour observed that there was no requirement to provide all material to the appellant as long as an opportunity was given to deal with adverse information ' that is credible, relevant and significant to the decision to be made ' (at [23] citing Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 at 629). His Honour also stated that '[a] decision maker is not required to disclose information that is already obvious '. 7 The appellant also submitted to his Honour that the Tribunal failed to consider the question of state protection. This ground was not included in the amended notice of appeal. Federal Magistrate Scarlett concluded that the Tribunal did not need to consider whether protection may be withheld for reason of ethnicity (at [22]). That finding followed from the conclusion that the Chinese in Indonesia were not targeted because of their ethnicity and that it was speculation that ethnic Chinese might be targeted. 8 A further issue arose during the hearing of this appeal that was not within the amended notice of appeal. That is whether there was an absence of evidence or of an available inference, so that the Tribunal's conclusion was not open to it or that the Tribunal decision was otherwise illogical. There was no objection to these grounds of appeal. The parties addressed the issue in more detail in written submissions filed after the hearing. 9 The Tribunal's reasoning seems to be as follows: 1. The May 1998 riots did target ethnic Chinese. 2. Only a very small percentage of the country's ethnic Chinese were harmed during those riots. 3. The appellants were unharmed. 4. There is no evidence that the appellant's siblings, who continue to reside in Indonesia, have been harmed since May 1998 because of their race. 5. There have been changes in Indonesia since August 1998, when the appellant left the country. 6. There were demonstrations in Jakarta in September 1999. 7. Those demonstrations were directed at the authorities; there was some looting of businesses in Chinatown but the evidence does not indicate that ethnic Chinese were among those targeted because of their race. 8. There was an outbreak of violence in Bandung in 1999 in which a predominantly Chinese area was targeted but there were no reported deaths or injuries. 9. Even if there were a further riot, it is no more than speculation that ethnic Chinese might be targeted because of their race. 10. Even if Chinese were targeted, the chance of such riots resulting in serious harm to the appellant was remote. 28 The Minister also submits that, because the information was in the public domain and sourced from newspapers, it was "obvious" and therefore there was no requirement to put it to the appellant. The Minister relied on Kioa at 633 and Miah at [141] in support of its submission. Those authorities do not stand for that proposition and the submission is rejected. The mere fact that information has been published does not make it obvious, nor does mere publication make apparent the use to which the information will be put by the Tribunal. 29 The transcript of the Tribunal hearing was not available to the Federal Magistrate. After the hearing of the appeal, the Minister filed a copy of the transcript and supplementary submissions which referred to the transcript without objection. The appellant was given an opportunity to, and did, put further submissions in reply. The parties thereby consented to my perusal of the transcript. 30 The Tribunal told the appellant that the recent changes in Indonesia were ' quite significant ' as far as the appellant was concerned and that there had been some ' significant changes ' since the May 1998 riots. The Tribunal stated to him that there had been no press reports of anti-Chinese riots in Java in 1999.


case_text: Mr Karp, who appears for the appellant, acknowledges that mere illogical reasoning on the part of the Tribunal is not sufficient to attract jurisdictional error ( Minister for Immigration and Multicultural Affairs v Al-Miahi (2001) 65 ALD 141 at [34]). He points out, however, that a decision that was irrational, illogical and not based upon findings or inferences of fact supported by logical grounds may be so infected ( Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2002) 198 ALR 59 at [34] [37]).


case_text: The appellant's application for a protection visa was filed prior to the commencement of s 422B of the Act. Accordingly, the appellants were entitled to be accorded natural justice at common law ( Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 ; (2004) 140 FCR 572 at [139] ). 18 Two of the three reasons advanced by the Tribunal for its lack of satisfaction of a well-founded fear of persecution were based on independent evidence of "significant changes" in Indonesia since the appellant's departure. The Tribunal concluded that the appellant's fear, though genuine, was not well-founded. In its view, the chance of persecution was remote. 19 The amended notice of appeal asserts an obligation on the part of the Tribunal to put matters to the appellant to provide the opportunity for him to respond, including: • information that ' is already obviou s'; • information known to the appellant; • information that is credible, relevant and significant to the decision to be made, whether obvious or not; • any adverse conclusion which has been arrived at which would not obviously be open on the known material; and • country information in the reports relied on in the decision.


case_title: Muin v Refugee Review Tribunal (S36 of 1999) [2002] HCA 30 ; (2002) 190 ALR 601

case_text: The Minister contends that the substance, or "essential features" of each factor on which the decision turned were brought to the appellant's attention ( Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal and Torres Strait Islander Affairs [2000] FCA 1113 ; (2000) 103 FCR 539 at [70] ). Mr Mitchell submits that it is apparent from the Tribunal's reasons that the appellant was given the opportunity to deal with the substance of the information which was credible, relevant and significant to the decision, with the possible exception of information that was obvious or favourable to or corroborative of the appellant's claims ( Muin v Refugee Review Tribunal [2002] HCA 30 ; (2002) 190 ALR 601 at [133] - [134] per McHugh J). Examples of obviousness of the constitutional protection of Catholicism and the population of Chinese Indonesians of the order of 5 million are given. The change in government is conceded not to be in this category but it is submitted that it was raised by the Tribunal with the appellant.


case_text: In NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [136] [137], Allsop J (with whom Moore and Tamberlin JJ agreed) provided some elucidation of the analysis to be undertaken in dealing with an allegation of illogicality. As his Honour pointed out, perfect logicality is a standard not necessarily achieved in the reasoning process of many decision makers; indeed, illogicality may highlight the understanding of how an error occurred within jurisdiction. There must, of course, be a process of reasoning. 14 Mr Karp does not submit that the Tribunal decision was of the kind described by Allsop J in NADH , a decision that lacked reasoning. It cannot be said that the Tribunal could not or did not reach its conclusion by a process of reasoning. 15 It was not inevitable, logically, that because the May 1998 riots were directed towards the ethnic Chinese and the appellant was ethnically Chinese, that the destruction of his family's business in Jakarta was racially motivated. It cannot be said that the conclusion was so unreasonable that no reasonable person could have come to it. It was open to the Tribunal to conclude that, in the context of general lawlessness, the destruction of his salon was not based on his race. 16 The appellant has not established jurisdictional error on this ground.


case_title: Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal and Torres Strait Islander Affairs [2000] FCA 1113 ; (2000) 103 FCR 539


case_title: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2002) 198 ALR 59


case_title: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicant S 154/2002 (2003) 201 ALR 437

case_text: Subject to one additional matter, the Tribunal did put to the appellant the key factors and critical issues on which that aspect of the decision was ultimately based and explained why they were important. The Tribunal was not obliged to put to the appellant the conclusions drawn from those facts or its reasoning ( Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S 154/2002 (2003) 201 ALR 437 at [54] per Gummow and Heydon JJ and at [85] [86] per Kirby J). It was not obliged to provide the appellant with the specific documents recording the information where the substance of the information was provided ( VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 559 at [28] per Allsop J with whom Gyles and Conti JJ agreed; SZBPM v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 215 at [19] to [20]). 39 The Tribunal member did not suggest to the appellant that it doubted that the destruction of his family's business was due to it being owned by a Chinese family (cf Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 (2003) 201 ALR 437 at [43]). She did not suggest to him that ethnic Chinese were not targeted in the 1998 May riots because of their race. To the contrary, she suggested that this part of his claim was accepted. 40 The Tribunal accepted in its decision that ' some ethnic Chinese suffered harm amounting to persecution during the 1998 riots ' and that ' if there were a real chance that an individual might face [such harm] during riots or at any other time, because of his or her race, that person would come within the definition of a refugee '. However, it drew a distinction between those persons and the appellant. It found that the looting and destruction of his business occurred not because the business was owned by a Chinese family, but in the context of a breakdown of law and order and widespread rioting affecting many shop-front businesses. The Tribunal said that it was not satisfied that the appellant was targeted because of his race. 41 The Minister submits that the Tribunal accepted the appellant's subjective fear arising during and subsequent to the May 1998 riots; that was not contradicted in the Tribunal's findings. The Minister contends that the Tribunal was not satisfied, however, that the looting of the appellant's shop was for reasons of his or his family's ethnicity. That is, the Tribunal accepted the appellant's subjective fears but did not accept that they were objectively well-founded at the time of the Tribunal decision.


case_title: Re Minister for Immigration and Multicultural Affairs Ex Parte Miah [2001] HCA 22 ; (2001) 206 CLR 57


case_text: The observations of the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 are apposite. In SZBEL the Tribunal did not challenge what the appellant said, express reaction or invite him to amplify those matters that the Tribunal later found to be "implausible' (at [3]). Where an issue arose at the Tribunal hearing that was not an issue before the Delegate, the High Court held that it was incumbent on the Tribunal to identify that issue and to tell the applicant of it (at [35]). The applicant was entitled to be on notice that his account on a particular aspect was an issue arising in relation to the decision under review (at [42]). Where the Delegate had not based his decision on an aspect, the Delegate's reasons did not indicate that that aspect of the account was in issue and the Tribunal did not identify the aspect as important and did not challenge what the appellant said, there is a denial of procedural fairness (at [42]-[44]; [47]). 48 Had the appellant been given an opportunity to respond to the issue of the cause of destruction of the salon in 1998, the Tribunal may have concluded that the looting of businesses in the Chinatown district of Jakarata did have a racial nexus, and that if this were to reoccur, as it apparently had in Bandung, the applicants could suffer harm serious enough to amount to persecution. 49 The Tribunal stated that its failure to be satisfied that the appellant had a well-founded fear of persecution was for three reasons. The second of these was that there had been significant changes since the appellant left and, even if there were a further riot, the chance was remote that the appellant would face serious harm. This, on its face, is a separate basis for its conclusion that there was no well-founded fear of persecution. I am satisfied that the Tribunal did put to the appellant the changes that had generally taken place in Indonesia after May 1998. However, this second reason was inextricably linked to the Tribunal's conclusion that, while demonstrations in September 1999 involved looting of businesses in Chinatown, ethnic Chinese were not then targeted because of their race and as such, it was speculation that ethnic Chinese might be targeted in the future.


case_text: Subject to one additional matter, the Tribunal did put to the appellant the key factors and critical issues on which that aspect of the decision was ultimately based and explained why they were important. The Tribunal was not obliged to put to the appellant the conclusions drawn from those facts or its reasoning ( Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S 154/2002 (2003) 201 ALR 437 at [54] per Gummow and Heydon JJ and at [85] [86] per Kirby J). It was not obliged to provide the appellant with the specific documents recording the information where the substance of the information was provided ( VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 559 at [28] per Allsop J with whom Gyles and Conti JJ agreed; SZBPM v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 215 at [19] to [20]).


case_text: That finding, in turn, could have affected the conclusion as at the date of the Tribunal decision, that changes in Indonesia meant that, it there were a riot, the chance of harm was remote. If there has been a denial of natural justice, there is jurisdictional error where, as here, the ultimate conclusion could have been affected ( VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [80] [81] citing Re Refugee Review Tribunal; ex parte Aala [2000] HCA 57 ; (2000) 204 CLR 82 at [51] [52] and [104]). 53 Accordingly the appeal should be allowed. 54 The Federal Magistrate made a recommendation to the Minister in clear terms (at [34] [35]). His Honour understood that it was merely a recommendation but included reference to it in his reasons and in his orders. I was informed at the hearing that, apart from drafting a letter that was not forwarded to the Minister, no action was taken to give effect to that recommendation. 55 I do not approve that course of action. I would have thought that the solicitors had an obligation, at the least, to bring that recommendation to the attention of their client. This obligation is, in my view, analogous to the obligation to pass on to a client any matter requiring further instructions. This would apply to a recommendation by a judicial offer where the party is a holder of public office. 56 I am informed that guidance issued by the Minister provides that it is inappropriate for the Minister to consider exercising her discretion under s 417 of the Act where there is migration-related litigation that has not been resolved. The appeal lodged from the decision of Scarlett FM resulted in the suspension of further consideration of the referral of this matter to the Minister by the Department. I am also informed that the Department has expedited its assessment of the appellant's case. That does not affect the obligation on the part of the solicitors to pass to the client the Federal Magistrate's recommendation.


case_title: VHAP v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 559


case_text: The scheme of Part 5.4 of the Corporations Act is to enable quick resolution of the issue of solvency and the determination of whether the company should be wound up, without the interposition of disputes about debts unless they are raised promptly ( David Grant & Co Pty Ltd v Westpac Banking Corporation [1995] HCA 43 ; (1995) 184 CLR 265 at 270). The Corporations Act provides that disputes about the existence of debts demanded in a statutory demand are to be resolved through the process of applying to set aside the statutory demand ( Chief Commissioner of Stamp Duties v Paliflex Pty Ltd [1999] NSWSC 15 ; (1999) 17 ACLC 467 at [38] ).


case_text: The exercise of the discretion under s 459S(1) does not lead to the setting aside of the statutory demand, and therefore does not remove the presumption of insolvency which arises under s 459C(2)(a). If the Court grants leave, its task is to deal with the proceedings for winding up, rather than cutting away the demand which is their substratum. The overall question of solvency is the critical issue (see, for example, D.A.G. International Pty Ltd v D.A.G. International Group Pty Ltd [2005] NSWSC 1036 at [5] per Brereton J). 32 In my opinion, the grounds sought to be relied upon by the respondent are those which could have been relied on in application to set aside the statutory demand. As such, for these arguments to be raised the Court must be satisfied that they are material to the present solvency of the defendant company. For the reasons set out in [28] and [35], it has not been demonstrated by the defendant that these grounds are relevant to the solvency of the company. 33 Leave to raise the grounds listed above is refused.


case_title: David Grant & Co Pty Ltd v Westpac Banking Corporation [1995] HCA 43 ; (1995) 184 CLR 265


case_text: The formalities of serving a statutory notice of demand are set out in s 109X of the Corporations Act . Service by post to the registered office shown on the records maintained by the Australian Securities and Investments Commission is effective service under s 109X(1)(a) (see for example FP Leonard Advertising v KD Travel Service Pty Ltd (1993) 11 ACLC 1,203.) 21 Section 29(1) of the Acts Interpretation Act 1901 (Cth) is applicable to the service of statutory demands due to s 5C of the Corporations Act . Section 29(1) deems postal service under s 109X(1)(a) to have been "effected at the time at which the letter would be delivered in the ordinary course of post", after it has been sent in a properly addressed, prepaid and posted letter. As a result, a statutory demand is validly served if posted to the registered office of the company as at the date of posting, even though service is deemed not to be effected until a time after posting, namely when the letter would be delivered in the ordinary course of post. 22 By virtue of s 160 of the Evidence Act 1995 (Cth) the statutory demand in the present case is presumed to have been served on Monday 17 July 2006, being the fourth working day after posting on Tuesday 11 July 2006. The defendant could have applied to set aside the demand in the period ending on Monday 7 August 2006. This was not done. 23 Further, no evidence has been submitted to warrant the presumption provided for in s 160 of the Evidence Act 1995 (Cth) being called into doubt. 24 In my opinion there was proper and effective service of the statutory demand.


case_text: The defendant was unable to suggest any authority to the effect that, where the Commissioner founds a statutory demand on an assessment and there is a later assessment, the statutory demand is thereby invalidated. The defendant sought to rely on comments of Finkelstein J in NT Resorts Pty Ltd v Deputy Commissioner of Taxation (1998) 153 ALR 359. These do not suggest any support for the propositions argued. His Honour said, at 367: It may be open to argument that where the only debt that is specified in a statutory demand is a debt that is not due and payable then the demand is not a statutory demand at all. It is true that a statutory demand is defined by s 9 to include a demand that purports to be a demand. That is, a demand that professes or claims to be a statutory demand will be a statutory demand for the purposes of the Corporations Law: see Kalamunda [ Meat Wholesalers Pty Ltd v Reg Russell & Sons Pty Ltd (1994) 51 FCR 446 at] 452. Nevertheless, there may be a case where a document that professes to be a statutory demand contains such a serious deficiency that it is impossible to treat the document as a statutory demand no matter what it professes to be: Topfelt [ Pty Ltd v State Bank of New South Wales Ltd (1993) 47 FCR 226 at] 238; Kalamunda at FCR 452. In this case it is not necessary to decide whether the demand is a statutory demand because it has not been established that the debts were not due and payable when the demand was served. 28 Setting aside the misplaced conception of "justiciability", the fact is that, at the time of service of the statutory demand, there were debts lawfully payable by the defendant to the plaintiff, as alleged in that demand. By independent operation of different statutory provisions there are now lawfully payable debts which the defendant cannot duly pay so as to compel a conclusion of insolvency. At no relevant time has the defendant ever been free of debt to the plaintiff at a level sufficient to enable resort by the plaintiff to the insolvency provisions of the Corporations Act . The statutory demand did not contain "such a serious deficiency that it is impossible to treat the document as a statutory demand" for the same reason as that given by Finkelstein J: it has not been shown that the debts in question "were not due and payable when the demand was served " (emphasis added). 29 With respect to grounds 4, 5 and 6 above, the defendant requires leave to raise these issues by virtue of s 459S of the Corporations Act . Leave is not to be granted unless the Court is satisfied that the grounds are material to the solvency of the company. The leave which may be granted under s 459S(1) is not leave to apply to set aside the statutory demand, but rather leave to oppose the application on a particular ground. If the ground of opposition is one which the company could have relied upon, but did not, in an application to set aside the demand, leave is required.


case_text: The Court has a discretion under s 467 not to wind up a company "even if a ground has been proved on which the Court may order the company to be wound up". For example, it may, in appropriate circumstances, be better for creditors as a whole to allow the company to trade on rather than have the company wound up. The Court has a duty when considering whether to make a winding up order to have regard not only to the interests of the applicant creditor, but to the interests of all creditors: Re Presha Engineering (Aust) Pty Ltd (1983) 1 ACLC 675 at 677. 38 No evidence was put forward regarding the position of unsecured creditors other than the plaintiff. The National Australia Bank is a secured creditor. In the absence of such evidence, it cannot be said that it is against the interest of any creditors that the defendant be wound up in insolvency. 39 There was a plea of hardship as to Ms Freeman's personal position. That the company might be wound up is a sad affair for her and she has had some unfortunate and affecting distractions, not of her making. Nevertheless, over a period of years she has been the controller of the company and has permitted it to slip into its insolvency. There is no proven prospect that that state can tolerably quickly be cured.


case_text: By an application filed 16 November 2005 in the Federal Magistrates Court of Australia ('the Federal Magistrates Court') the respondent sought relief pursuant to s 30(1)(b) of the Act in respect of the realisation of the property and the disposition of the proceeds of any sale. In Re Bilen; Ex Parte Sistrom [1985] FCA 141 Neaves J at [8] said in relation to an application by the trustee of a bankrupt seeking declarations as to the beneficial ownership of land registered in the names of a bankrupt and his wife as joint tenants and in respect of the disposition of the bankrupt's undivided half share: 'In my opinion s 30(1) of the Bankruptcy Act 1966 is not a provision limiting the Court's jurisdiction. It is a facultative provision giving the Court full power, within the limits of its jurisdiction to be found elsewhere, to make such orders as it considers should be made in order to carry out and give effect to the Act. The words used are not words of limitation but of extension.' 8 Later his Honour said at [17]: '... this Court is not restricted in considering what orders it would be appropriate to make in exercise of the power conferred on it by s 30(1) of the Bankruptcy Act 1966 by the kinds of limitations which may be found in the Partition Act, 1900 (NSW)' [see also s 66G of the Conveyancing Act 1919 (NSW)] 9 The respondent's application came before the learned Federal Magistrate on 6 December 2005, 17 January and 16 February 2006. 10 On 6 December 2005 the Federal Magistrate ordered the appellant to file and serve a Notice of Appearance by 7 December 2005, but this did not occur. However, at about 4.01 pm on 7 December 2005 Mr Thanh Tung Vo, a solicitor in the firm known as Australasia Legal & Migration Services, Solicitors attempted to file a Notice of Appearance dated 7 December 2005 by forwarding same by facsimile to facsimile number 9230 8535, which he believed to be the facsimile number for the Federal Magistrates Court. Whether this Notice of Appearance reached the Court or not is uncertain. It certainly did not reach the relevant Federal Magistrates Court file number SYG 3351 of 2005. The Federal Magistrate also ordered that the Respondent file and serve 'a Notice in accordance with Form 149 stating grounds of opposition and affidavit supporting grounds of opposition' by 22 December 2005. Once again, this did not occur. 11 Whilst a notice in accordance with Form 149 stating the appellant's grounds of opposition to the trustee's application was never filed, an attempt was made to prepare an affidavit for the appellant propounding that she had contributed $37,000 out of a total purchase price of $67,000 paid for the property, that the balance had been funded by an advance from Commonwealth Bank of Australia to the appellant and the bankrupt and that she had paid all the monies due under the mortgage. Page 1 of the affidavit suggests that it was sworn on 15 December 2005. This is patently incorrect, but I am satisfied that no deception of the Federal Magistrates Court was intended. Each of the annexure notes in respect of annexures 'A', 'B' and 'C' to the affidavit indicate that it was in fact sworn on 15 February 2006. Mr Vo's evidence is that he was responsible for the insertion of the date 15 December 2005 which was the date when he set about drafting the affidavit. Due to inadvertence on his behalf he failed to cause the correct date to be inserted on page 1 of the affidavit when it came to be sworn on 15 February 2006 in its final form. No attempt was ever made by the appellant to file the affidavit and it was never read. However, on 16 February 2006 it was handed up to the Federal Magistrate. It was not formally tendered but it seems clear to me that it was intended by Mr Vo that it should become an exhibit on the hearing of an application made by him orally on that day to which reference will be made hereafter. The affidavit included the following: '3. Although my husband and I were registered as proprietors of the Property as joint tenants, I in fact paid all the monies as necessary to purchase the Property in our joint names together with the monies advanced by the original mortgagee, the Commonwealth Bank of Australia (CBA). ... 6. Annexed and marked "B" is a copy of another payment made by me to my conveyancing solicitor, although the receipt was in joint names. 7. I made the mortgage payment from my monies solely. 8. My husband did not contribute any to the purchase or the mortgage repayment at any time. ... 13. I having made an informed decision, I oppose the sale of the Property which, is in fact mine and which is the only home of myself, my husband and my three children. ...'


case_text: The usual test for determining whether an order is final or interlocutory is whether the order, as made, finally determines the rights of the parties. The test requires the appellate court to look at the consequences of the order itself and to ask whether it finally determines the rights of the parties in a principal cause pending between them. Accordingly, orders refusing to set aside a default judgment or refusing to grant an extension of time are not final judgments because the unsuccessful party could make a further application for the same relief, even though such an application might have very little prospect of success (per McHugh, Kirby and Callinan JJ in Bienstein v Bienstein [2003] HCA 7 ; (2003) 195 ALR 225 at 230 [25] ; see also per McHugh ACJ, Gummow and Heydon JJ in Re Luck [2003] HCA 70 ; (2003) 203 ALR 1 at 2 [4] ).


case_text: The relevant principles in relation to the setting aside of orders made in a party's absence have been conveniently summarised in the judgment of Leggatt LJ in Shocked v Goldschmidt [1998] 1 All ER 372 at 381 as follows: '... (1) Where a party with notice of proceedings has disregarded the opportunity of appearing at and participating in the trial, he will normally be bound by the decision. (2) Where judgment has been given after a trial it is the explanation for the absence of the absent party that is most important: unless the absence was not deliberate but was due to accident or mistake, the court will be unlikely to allow a rehearing. (3) Where the setting aside of judgment would entail a complete retrial on matters of fact which have already been investigated by the court the application will not be granted unless there are very strong reasons for doing so. (4) The court will not consider setting aside judgment regularly obtained unless the party applying enjoys real prospects of success. (5) Delay in applying to set aside is relevant, particularly if during the period of delay the successful party has acted on the judgment, or third parties have acquired rights by reference to it. (6) In considering justice between parties, the conduct of the person applying to set aside the judgment has to be considered: where he has failed to comply with orders of the court, the court will be less ready to exercise its discretion in his favour. (7) A material consideration is whether the successful party would be prejudiced by the judgment being set aside, especially if he cannot be protected against the financial consequences. (8) There is a public interest in there being an end to litigation and in not having the time of the court occupied by two trials, particularly if neither is short.' Roch and Morritt LJJ agreed with the reasons for judgment of Leggatt LJ. 45 It seems clear that the appellant did not relevantly disregard the opportunity to appear at and participate in the hearing listed for 9.30 am on 16 February 2006. The arrival of Mr Vo, albeit late, suggests that the appellant's absence was anything but deliberate. It does not appear that there was an extensive trial before the Federal Magistrate on 16 February 2006 before Mr Vo arrived. There was plainly no relevant delay on the part of the appellant in seeking to set aside the orders made earlier in the day on 16 February 2006 and there would appear to be no real prejudice to the respondent if the orders made earlier in the day on 16 February 2006 were to be set aside. The conduct of the appellant in failing to comply with orders of the Federal Magistrate in relation to the provision of particulars of her grounds of opposition to the trustee's application and the filing of affidavits warrants criticism, but does not, in my view, compel a conclusion that the application to set aside the earlier orders should have been refused. It is but one of the matters to which the Federal Magistrate was entitled to have and should have had regard in the exercise of his discretion. 46 The substantial consideration, in the circumstances of this case, seems to me to be whether the appellant would enjoy 'real prospects of success' were the orders made in her absence on 16 February 2006 to be set aside. 47 Whilst the Federal Magistrate appears to have conducted something of a mini trial by reference to the appellant's affidavit of '15 December 2005' and the corroborative documents upon which she sought to rely being annexures 'A', 'B' and 'C' to that affidavit, the fact remains that notwithstanding the Federal Magistrate's findings in respect of the corroborative evidence, her untested evidence as recorded in the affidavit was, as the Federal Magistrate found, to suggest that she had 'advanced $37,000 of the $67,000 purchase price, the balance being a mortgage to the Commonwealth Bank of Australia, which she says she made all the payments for'.


case_text: It seems to me that, if at a hearing of the trustee's application, the facts deposed to by the appellant were accepted, then it may well be inappropriate for there to be a sale of the property with an equal division of the proceeds of sale as contemplated by the orders made by the Federal Magistrate (see generally Calverley v Green [1984] HCA 81 ; (1985) 155 CLR 242, Muschinski v Dodds [1985] HCA 78 ; (1985) 160 CLR 583, Baumgartner v Baumgartner [1987] HCA 59 ; (1987) 164 CLR 137 and Parsons v McBain [2001] FCA 376 ; (2001) 109 FCR 120).


case_title: Muschinski v Dodds [1985] HCA 78 ; (1985) 160 CLR 583


case_title: Baumgartner v Baumgartner [1987] HCA 59 ; (1987) 164 CLR 137


case_title: Spencer v The Commonwealth (1907) 5 CLR 418

case_text: arrive at the value of property on a particular date, it is necessary to make a judgment as to the price at which the property would be sold on that date by voluntary bargaining between a seller and a buyer willing to trade, but neither of whom is so anxious to do so that the buyer or seller would overlook any ordinary business consideration. The judgment must be made on the assumption that both buyer and seller are perfectly acquainted with the property and cognisant of all circumstances that might affect its value, either advantageously or prejudicially. Having placed itself in the position of such parties at the relevant date, the question for the decision maker to determine is the point at which the buyer and seller would meet: that is to say, the aim is to determine the sum that the buyer would be willing to pay and the price that the seller would be prepared to take (see Spencer v The Commonwealth [1907] HCA 70 ; (1907) 5 CLR 418 at 441). So much is undoubted.


case_text: the first question that arises in the present context is to determine just what is to be valued. Section 667C refers to ' the company as a whole '. That phrase signifies the overall enterprise or undertaking of the relevant company, in the sense of the whole of its assets and its liabilities as a going concern or as a cohesive collection of resources organised so as to produce a return through outlay. Attention is directed at the sum of the component parts, viewed as a productive organisational whole and not at any particular asset or advantage (see Teh v Ramsay Centauri Pty Ltd [2002] NSWSC 456 at [13] ). In particular, the phrase does not direct attention to the value of particular share capital of the relevant company. On the other hand, dealings in the share capital of a company may give considerable assistance in the task of determining the value of that company as a whole. The date as at which the value is to be determined is the date at which the 90% holder gives the relevant compulsory acquisition notice. It is at that point that the 90% holder initiates the process for compulsory acquisition. The holders of the shares that are to be subject to acquisition are drawn into a relationship with the 90% holder, whether they like it or not, by the operation of the Act (see Teh v Ramsay Centauri at [28]). The E&Y Report did not directly address the question of the value of the Company as a whole, in the terms just outlined. The E&Y Report referred expressly to the provisions of s 667C(1) and referred to Practice Note 43, issued by the Commission, which provides guidance on possible valuation methodologies for an expert to consider. However, notwithstanding the express reference to s 667C(1), the E&Y Report adopted the approach of valuing the ordinary shares and the preference shares in the Company and then aggregating those values to arrive at the value of the Company as a whole. While, ultimately, the result of such an exercise may be helpful, that does not appear to me to be the approach called for by the terms of s 667C. The Company operates in the newspaper printing and publishing industry in Australia. The E&Y Report began with an overview of that industry followed by a profile of the Company. The core operating activity of the Company is publishing ' The Advocate ', a regional daily newspaper based in Burnie, Tasmania. The Company also operates a printing business which prints The Advocate as well as undertaking general printing for third parties. The Company also has a 40 per cent interest in The Examiner Newspaper Pty Ltd, which publishes ' The Examiner ', a newspaper based in Launceston, Tasmania.


case_text: do not consider that an addition for the special value identified in the E&Y Report is appropriate, having regard to the language of s 667C. As I have said, the first step requires the determination of the value, as at the date of the compulsory acquisition notice, of the Company as a whole, in the sense indicated above. It is impermissible, in determining fair value, to make any allowance for synergies to be achieved by the acquisition. It is equally impermissible in determining fair value to take into account special benefits deriving from full ownership (see Winpar Holdings Ltd v Austrim Nylex Ltd [2005] VSCA 211 at [35] ). I have taken some trouble to deal with Ernst & Young's opinion in some detail since, for the reasons I have indicated, I consider that it adopts an inappropriate approach. However, neither defendant suggested that such an inappropriate approach invalidated the process. That is to say, they accepted that it is a matter for the Court, on the basis of the evidence before it, which was limited to the Expert's Report, to determine whether Regional has established that $2.50 per preference share gives shareholders a fair value for the preference shares. The defendants advanced arguments concerning the basis upon which the so-called special value should be allocated between ordinary shares and preference shares. The contention appears to be that Regional is a buyer of preference shares, and the present holders, apart from Regional, are sellers of preference shares. They suggested that it is necessary to allocate the special value of $1.4 million identified by Ernst & Young between Regional, on the one hand, and preference share holders, who include Regional, on the other hand. Something in the order of half and half was suggested as appropriate. The contention appears to be that that exercise should be undertaken as part of the allocation of the value of the Company as a whole between the two classes of shares.


case_text: The applicants seek orders that they be permitted to provide IMF with a copy of the Ericsson parties' discovered documents in these proceedings (excluding category 17 documents to which confidentiality undertakings apply). They seek such an order because of the implied undertaking by solicitors for a party to whom documents are produced on discovery: ... that he himself will not use or allow the documents or copies of them to be used for any collateral or ulterior purpose of his own, his client or anyone else; and any breach of that implied undertaking is a contempt of court by the solicitor himself. Harman v Secretary of State for the Home Department [1983] 1 AC 280 at 304 (Lord Diplock). 14 The rationale for the implied undertaking has been variously expressed. Lord Keith propounded it thus ( Harman [1983] 1 AC at 308): Discovery constitutes a very serious invasion of the privacy and confidentiality of a litigant's affairs. It forms part of English legal procedure because the public interest in securing that justice is done between parties is considered to outweigh the private and public interest in the maintenance of confidentiality. But the process should not be allowed to place upon the litigant any harsher or more oppressive burden than is strictly required for the purpose of securing that justice is done. In Lord Diplock's reasoning reliance appeared to be placed upon the unfair advantage that a party acquiring documents through the judicial process of discovery would obtain if empowered to use them for purposes unconnected with the proper conduct of the action. 15 The majority in Harman 1 AC 280 applied the limitation even to documents which had been received or read in evidence. On the latter point, Lords Scarman and Simon dissented (at 313). The consideration which divided the dissenters from the majority is not material for present purposes and, in any event, has been overtaken by O 15 r 18 of the Federal Court Rules which provides, inter alia, that the implied undertaking ceases to apply to a document after it has been read to or by the Court or referred to in open court in such terms as to disclose its contents unless the Court otherwise orders. 17 In Crest Homes Plc v Marks [1987] AC 829, which followed the decision of the House of Lords in Harman [1983] 1 AC at 280, Lord Oliver allowed that the undertaking could be modified to authorise use of discovered documents in other proceedings where there were "special circumstances". In Holpitt Pty Ltd v Varimu Pty Ltd (1991) 29 FCR 576, Burchett J commented on that test (at 578): As far as the expression "special circumstances" is concerned, it is an expression which is liable to be misunderstood unless care is taken to ask and answer the question, special in relation to what? "Special" is one of those words which derive almost all their meaning from the context ... If all that is required is that, among the great number of cases in the court in which documents have been discovered, this one must evince some special feature which affords a reason for releasing or modifying the undertaking, there will be no difficulty. Circumstances in which there is a legitimate reason why documents discovered in one proceeding should be made available in another will, viewed in this way, be rare. Lockhart J took a like approach in Sweetman v Australian Thoroughbred Pty Ltd [1992] FCA 1059 and both were followed by Wilcox J in Springfield Nominees Pty Limited v Bridgelands Securities Limited (1992) 38 FCR 217 at 223-225. In the latter case Wilcox J said (at 225): For "special circumstances" to exist it is enough that there is a special feature of the case which affords a reason for modifying or releasing the undertaking and is not usually present. The matter then becomes one of the proper exercise of the court's discretion, many factors being relevant. It is neither possible nor desirable to propound an exhaustive list of those factors. But plainly they include the nature of the document, the circumstances under which it came into existence, the attitude of the author of the document and any prejudice the author may sustain, whether the document pre-existed litigation or was created for that purpose and therefore expected to enter the public domain, the nature of the information in the document (in particular whether it contains personal data or commercially sensitive information), the circumstances in which the document came into the hands of the applicant for leave and, perhaps most important of all, the likely contribution of the document to achieving justice in the second proceeding. 20 IMF is not a legal practitioner. It is in the business of financing litigation for reward. A large international corporation involved in many commercial transactions might well be concerned that the general disclosure of its discovered documents to such an entity could give rise to a risk that information derived from them could be placed on a database and at some time in the future used for other purposes or other proceedings. I do not suggest that this is likely to happen in the present case. However, the generic risk associated with the wider disclosure of the discovered documents is something which the party discovering those documents is entitled to take into account and be concerned about. It is entitled to seek specificity as to the documents to be disclosed and the purpose for which they are to be disclosed. This is particularly so given that the litigation funder, as in this case, does not have an interest in the cause of action nor any right to direct or control the conduct of the proceedings. It has certain rights in relation to their settlement which were referred to in my earlier judgment in relation to the application for a stay. Its limited involvement was a basis upon which its support of these proceedings was found not to be an abuse of process. As Callinan and Heydon JJ said in Campbells Cash and Carry Pty Ltd v Fostif Pty Ltd [2006] HCA 41 ; (2006) 229 ALR 58 at 131 [277] : It is a factor pointing against an abuse of process that the funder of litigation "does not meddle at all" or by its contract is left "very little room to intermeddle". Conversely, the more room to intermeddle, the more likely is it that the litigation is an abuse of process. Their Honours cited the earlier decision in these proceedings: QPSX Ltd v Ericsson Australia Pty Ltd (No 3) (2005) 219 ALR 1 at 16 [61]. The second quotation in the above judgment came from that judgment. To the extent that general disclosure of documents to the funder increases the risk of "intermeddling" by the funder it undermines the basis upon which the proceedings were held not to involve an abuse of process. The rationale for the implied undertaking enunciated in Harman [1983] 1 AC 280, which also informs the "special circumstances" threshold, has relevance in this situation even if, which it is not necessary to decide, special circumstances would not be necessary to justify specific disclosures to the funder.


case_text: The application of the implied undertaking to proceedings in this Court was asserted by Northrop J in National Mutual Holdings Pty Ltd v Sentury Corporation & Ors [1990] FCA 245 when his Honour said (at [17]): It is clear that according to Australian law a person who acquires a document pursuant to the processes of the Court is under a duty not to disclose or make use of that document for purposes other than the Court proceedings without the leave of the Court or the person from whom the document has been obtained.


case_title: Crest Homes Plc v Marks [1987] AC 829

case_text: In Crest Homes Plc v Marks [1987] AC 829, which followed the decision of the House of Lords in Harman [1983] 1 AC at 280, Lord Oliver allowed that the undertaking could be modified to authorise use of discovered documents in other proceedings where there were "special circumstances". In Holpitt Pty Ltd v Varimu Pty Ltd (1991) 29 FCR 576, Burchett J commented on that test (at 578): As far as the expression "special circumstances" is concerned, it is an expression which is liable to be misunderstood unless care is taken to ask and answer the question, special in relation to what? "Special" is one of those words which derive almost all their meaning from the context ... If all that is required is that, among the great number of cases in the court in which documents have been discovered, this one must evince some special feature which affords a reason for releasing or modifying the undertaking, there will be no difficulty. Circumstances in which there is a legitimate reason why documents discovered in one proceeding should be made available in another will, viewed in this way, be rare. Lockhart J took a like approach in Sweetman v Australian Thoroughbred Pty Ltd [1992] FCA 1059 and both were followed by Wilcox J in Springfield Nominees Pty Limited v Bridgelands Securities Limited (1992) 38 FCR 217 at 223-225. In the latter case Wilcox J said (at 225): For "special circumstances" to exist it is enough that there is a special feature of the case which affords a reason for modifying or releasing the undertaking and is not usually present. The matter then becomes one of the proper exercise of the court's discretion, many factors being relevant. It is neither possible nor desirable to propound an exhaustive list of those factors. But plainly they include the nature of the document, the circumstances under which it came into existence, the attitude of the author of the document and any prejudice the author may sustain, whether the document pre-existed litigation or was created for that purpose and therefore expected to enter the public domain, the nature of the information in the document (in particular whether it contains personal data or commercially sensitive information), the circumstances in which the document came into the hands of the applicant for leave and, perhaps most important of all, the likely contribution of the document to achieving justice in the second proceeding.


case_title: Holpitt Pty Ltd v Varimu Pty Ltd (1991) 29 FCR 576


case_title: Sweetman v Australian Thoroughbred Pty Ltd [1992] FCA 1059


case_title: Springfield Nominees Pty Limited v Bridgelands Securities Limited (1992) 38 FCR 217


case_text: In Cadence Asset Management Pty Ltd v Concept Store Ltd [2006] FCA 711 , Finkelstein J, faced with a similar application in relation to the same litigation funder said (at [6] and [7]): [6] The view that I take is that the implied undertaking does not prevent absolutely a party giving discovered documents to a non-party. There are circumstances in which a party has a legitimate interest in disclosing discovered documents to a non-party. Obvious examples include showing a discovered document to an actual or prospective witness or to an expert non-witness. Of course that is permissible; because in each case the document is being used for the action. There are also cases where a non-party has a legitimate interest in seeing discovered documents. ... The reason permission is not required is that the provision of the documents is not for an ulterior or foreign purpose. Another way of putting it is that the non-party is not a true stranger to the action. [7] The private interests of the opposite parties are not affected if the documents are handed over. This is because the implied undertaking will bind any person to whom the documents are given ... at least once he is aware that the documents have been obtained by way of discovery... His Honour held in that case that IMF was not a stranger to the action. It had a sufficient interest to be provided with the discovered documents or at least those it needed to assess the merits of the action. In my opinion the general disclosure of discovered documents and information derived there from to a party's litigation funder raises concerns which are not answered by saying that the litigation funder has an interest in the case. I note that Finkelstein J adverted to a possible limitation that disclosure to the litigation funder might go no further than was needed for it to assess the merits of the case. 24 In a letter dated 10 November 2006 Mr Rollnik wrote to the solicitors for the Ericsson parties stating that they were instructed that IMF had a funding agreement with the applicants and "a recognised interest in this dispute". He referred to Cadence Asset Management Pty Ltd [2006] FCA 711. In a further letter dated 29 November 2006 he described IMF's purpose in accessing the discovery as being "to look after its interest in the litigation as set out in the Funding Agreement". 25 The Ericsson parties submitted that the Court should not entertain the applicants' application until they had had a reasonable opportunity to consider confidentiality issues with respect to specific documents the subject of the application. The broad brush approach of the applicants was said to place an unreasonable burden on them. Subject to the identification of specific documents the Ericsson parties might accede to the "release" of some or all of the documents identified. 26 I agree with the submission of the Ericsson parties. I am not prepared to accede to the applicants' application in the general terms in which it is made. I do not think a general licence to disclose documents to IMF on the broad basis that it has a legitimate interest in the proceedings is a sufficient basis for such disclosure in light of the considerations to which I have earlier referred. I will therefore refuse the application. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French. Associate: Dated: 1 March 2007 Counsel for the First and Second Applicants: Mr J A Thomson and Mr M Lundberg Solicitor for the First and Second First and Second Applicants: Mallesons Stephen Jaques Counsel for the First and Second Respondents: Dr J McL Emmerson QC and Mr RA Heath Solicitor for the First and Second Respondents: Carrick Kellow Smyth Date of Hearing: 22 February 2007 Date of Judgment: 1 March 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/244.html


case_text: IMF is not a legal practitioner. It is in the business of financing litigation for reward. A large international corporation involved in many commercial transactions might well be concerned that the general disclosure of its discovered documents to such an entity could give rise to a risk that information derived from them could be placed on a database and at some time in the future used for other purposes or other proceedings. I do not suggest that this is likely to happen in the present case. However, the generic risk associated with the wider disclosure of the discovered documents is something which the party discovering those documents is entitled to take into account and be concerned about. It is entitled to seek specificity as to the documents to be disclosed and the purpose for which they are to be disclosed. This is particularly so given that the litigation funder, as in this case, does not have an interest in the cause of action nor any right to direct or control the conduct of the proceedings. It has certain rights in relation to their settlement which were referred to in my earlier judgment in relation to the application for a stay. Its limited involvement was a basis upon which its support of these proceedings was found not to be an abuse of process. As Callinan and Heydon JJ said in Campbells Cash and Carry Pty Ltd v Fostif Pty Ltd [2006] HCA 41 ; (2006) 229 ALR 58 at 131 [277] : It is a factor pointing against an abuse of process that the funder of litigation "does not meddle at all" or by its contract is left "very little room to intermeddle". Conversely, the more room to intermeddle, the more likely is it that the litigation is an abuse of process. Their Honours cited the earlier decision in these proceedings: QPSX Ltd v Ericsson Australia Pty Ltd (No 3) (2005) 219 ALR 1 at 16 [61]. The second quotation in the above judgment came from that judgment. To the extent that general disclosure of documents to the funder increases the risk of "intermeddling" by the funder it undermines the basis upon which the proceedings were held not to involve an abuse of process. The rationale for the implied undertaking enunciated in Harman [1983] 1 AC 280, which also informs the "special circumstances" threshold, has relevance in this situation even if, which it is not necessary to decide, special circumstances would not be necessary to justify specific disclosures to the funder.


case_title: QPSX Ltd v Ericsson Australia Pty Ltd (No 3) (2005) 219 ALR 1