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Case105 | referred to | Gedeon v Commissioner of New South Wales Crime Commission [2008] HCA 43 ; (2008) 82 ALJR 1465 | Gedeon v Commissioner of New South Wales Crime Commission [2008] HCA 43 ; (2008) 82 ALJR 1465 at [43] the High Court said: The expression "jurisdictional fact" was used somewhat loosely in the course of submissions. Generally the expression is used to identify a criterion the satisfaction of which enlivens the exercise of the statutory power or discretion in question. If the criterion be not satisfied then the decision purportedly made in exercise of the power or discretion will have been made without the necessary statutory authority required of the decision maker. | OBJ |
Case106 | cited | Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1 ; [1948] 1 KB 223 | The applicant contends that the Act does not apply to her and therefore the divestiture order is invalid because s 4(6)(a) is not a valid law of the Federal Parliament. In the alternative the applicant contends that if it is a valid law, nevertheless, the power in s 21A(4) was not engaged in this case because the requirements of s 25(1D) were not met and therefore the divestiture order is invalid. The applicant further contends that even if these two contentions fail, the divestiture order made by the respondent is invalid because, before it was made, the applicant was not accorded procedural fairness. In the further alternative, the applicant contends that the order is invalid because the respondent was not in fact satisfied that the acquisition is contrary to the national interest within s 21A(4). In her application and statement of claim the applicant also contended that the divestiture order is invalid because the respondent applied a policy and did not genuinely consider the merits of the matter before him or because his decision was unreasonable in the Wednesbury sense ( Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1 ; [1948] 1 KB 223). At the hearing of the application, those two submissions were abandoned. 25 In relation to the applicant's first contention, the contention may be dealt with by reference to the facts stated to this point. In relation to the applicant's other contentions, I will need to set out the facts in more detail when considering the contentions. 26 Notices under s 78B of the Judiciary Act 1903 (Cth), were given but none of the Attorneys-General sought to intervene. The Solicitor-General for the Commonwealth appeared for the respondent. | SUBJ |
Case107 | cited | Burton v Mayor etc of London Borough of Camden [2000] UKHL 8 ; [2000] 2 AC 399 | In those circumstances, it is not strictly necessary for me to consider the respondent's alternative submission that in 2004 there was an acquisition within s 21A(4) when the applicant's former husband transferred his interest in the property to the applicant, who then became the sole registered proprietor of the property. The submissions on this issue went no further than the question of whether or not there had been an 'acquisition' within s 21A(4) in 2004. The applicant submits that by reference to general concepts of real property law there was no acquisition in 2004 because the applicant, who was a joint tenant of the property, was already (ie, prior to becoming the sole registered proprietor) seised of the whole of the estate or interest: Bradbrook MacCallum and Moore, Australian Real Property Law (3 rd ed, 2002) 340 [10.02]. It has been said that a joint tenant cannot assign his or her interest but, rather, one of two joint tenants may enter into a transaction by way of release of the estate: Burton v Mayor etc of London Borough of Camden [2000] UKHL 8 ; [2000] 2 AC 399. In response to this submission of the applicant, the respondent referred to s 12A of the Act . That section relevantly provides: '(3) For the purposes of this Act , a person acquires an interest in Australian urban land even if: (a) the person acquires the interest jointly with another person or persons; (b) the person has previously acquired an interest in Australian urban land; or (c) the interest is an increase in the amount of an existing interest of the person in Australian urban land.' 74 I think there was an increase in the applicant's interest within the terms of s 12A(3)(c) when she became the sole registered proprietor of the property and therefore an 'acquisition' within the Act . 75 However, there are a number of further matters which arise once this conclusion is reached and these further matters were not the subject of detailed submissions. They are as follows: 1. The respondent was aware of the proposed acquisition in 2004 and, in fact, agreed to it taking place, although he did so on the applicant agreeing to sell the property and without the formal approval procedures prescribed by the Act being followed. 2. A question may arise as to whether the power to make an order requiring the applicant to dispose of the whole of the property is engaged, having regard to the particular interest acquired by the applicant in 2004. 3. The minute containing the recommendations adopted by the respondent makes it clear that it was the acquisition in 1995 which formed the basis of the order made by the respondent under s 21A(4). A question may arise as to whether, in those circumstances, the respondent's decision can only be considered by reference to that acquisition. | OBJ |
Case108 | cited | Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64 ; (1992) 176 CLR 1 | A narrower view of the aliens power has been taken on occasion (see Gaudron J in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64 ; (1992) 176 CLR 1 at 57) but I am satisfied that the views expressed by Brennan J in Cunliffe v Commonwealth (supra) are the principles binding on me. The applicant argued the matter by reference to those principles. | OBJ |
Case109 | considered | Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 | In Kioa , it was also made clear that an applicant entitled to natural justice is entitled to be told of adverse information obtained by the decision-maker from third parties and which he or she proposes to take into account and to be given the opportunity to respond to that information. Brennan J referred to the obligation and identified its limits in the following passage (at 628-629) (footnotes omitted): 'A person whose interests are likely to be affected by an exercise of power must be given an opportunity to deal with relevant matters adverse to his interests which the repository of the power proposes to take into account in deciding upon its exercise: Kanda v Government of Malay ; Ridge v Baldwin per Lord Morris; De Verteuil v Knaggs . The person whose interests are likely to be affected does not have to be given an opportunity to comment on every adverse piece of information, irrespective of its credibility, relevance or significance. Administrative decision-making is not to be clogged by inquiries into allegations to which the repository of the power would not give credence, or which are not relevant to his decision or which are of little significance to the decision which is to be made. Administrative decisions are not necessarily to be held invalid because the procedures of adversary litigation are not fully observed. As Lord Diplock observed in Bushell v Environment Secretary : "To 'over-judicialise' the inquiry by insisting on observance of the procedures of a court of justice which professional lawyers alone are competent to operate effectively in the interests of their clients would not be fair." Nevertheless in the ordinary case where no problem of confidentiality arises an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made. It is not sufficient for the repository of the power to endeavour to shut information of that kind out of his mind and to reach a decision without reference to it. Information of that kind creates a real risk of prejudice, albeit subconscious, and it is unfair to deny a person whose interests are likely to be affected by the decision an opportunity to deal with the information. He will be neither consoled nor assured to be told that the prejudicial information was left out of account. The allegation in par 22 was apparently credible, relevant and damaging. The failure to give Mr Kioa an opportunity to deal with it before making an order that Mr and Mrs. Kioa be deported left a risk of prejudice which ought to have been removed. There was nothing in the circumstances of the case - neither in the administrative framework created by the Act nor in any need for secrecy or speed in making the decision - which would have made it unreasonable to have given Mr and Mrs Kioa that opportunity. The failure to give Mr Kioa that opportunity amounts to a non-observance of the principles of natural justice.' The principle referred to in this passage is well established and, for present purposes, needs no further elaboration (see Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 (' Alphaone ') at 590-591. 100 The principles governing the applicant's third submission are relatively clear, although they can give rise to difficulties in terms of application. Ordinarily, a decision-maker is not required to invite comment from an applicant as to the decision-maker's provisional views or mental processes ( F Hoffman-La Roche and Co AG v Secretary for Trade and Industry [1975] AC 295 per Lord Diplock at 369). However, a decision-maker may be under an obligation to invite comment from an applicant on an adverse conclusion based on known material if that conclusion is not an obvious and natural conclusion from that material. In Alphaone , the Full Court of this Court (Northrop, Miles and French JJ) put the matter in the following way (at 591-592): 'Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.' 102 The principle was referred to in passing by Gleeson CJ, Gummow and Heydon JJ in Re Minister for Immigration and Multicultural and Indigenous Affairs, ex parte Palme [2003] HCA 56 ; (2003) 216 CLR 212 at 219 [21] - [22] (footnotes omitted): 'Further, it does not readily appear how the principles of procedural fairness could be engaged in the manner contended for by the prosecutor. It may be accepted, as the prosecutor submitted, that his entitlement extended to the rebuttal of, and comment by way of submission upon, adverse material received by the decision-maker from other sources. That stops short of supporting a complaint of the nature essentially involved here of the "pitch" or "balance" in the statement of relevant considerations in the Submission. Further, as indicated above, there is no substance in any complaint of unfair or prejudicial "lack of balance". Reference was made by the prosecutor to the decision of the Full Court of the Federal Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd . Nothing there said supports any different conclusion to that just expressed. The Full Court's statement of principle was as follow: "Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question."' 103 Alphaone was also referred to in the recent decision of the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63. That case raised a question as to whether the Refugee Review Tribunal had advised, or sufficiently advised, an applicant for review of matters it relied on in dismissing the application. The case turned on the obligation of the Tribunal under s 425 of the Migration Act 1958 (Cth) and the facts of the case. The Court did make some observations about what was said to be a dichotomy between an obligation to advise of adverse conclusions which have been arrived at which would not obviously be open on the known material, and the lack of an obligation to advise of a decision-maker's mental processes or provisional views. After referring to the passage in Alphaone set out in [100] above, the Court said (at [30], [31] and [32]) (footnotes omitted) : 'Particular attention was directed in argument in this Court, as it had been in the courts below, to the Tribunal's conclusion that the three identified elements of the appellant's story were not "plausible". Was that a conclusion "which would not obviously be open on the known material"? Or was it no more than a part of the "mental processes" by which the Tribunal arrived at its decision? Stated in this way, the argument seeks to elucidate the content of the requirements of procedural fairness by setting up a dichotomy. There are two reasons to exercise considerable care in approaching the problem in that way. First, it is far from clear that the two categories that are identified (conclusions not obviously open on the known material, and mental processes of decision-making) encompass all possible kinds of case that may fall for consideration. Secondly, there is a very real risk that focusing upon these two categories will distract attention from the fundamental principles that are engaged. In Alphaone the Full Court rightly said: "It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material." (emphasis added) The Act defines the nature of the opportunity to be heard that is to be given to an applicant for review by the Tribunal. The applicant is to be invited "to give evidence and present arguments relating to "the issues arising in relation to the decision under review". (emphasis added) The reference to "the issues arising in relation to the decision under review" is important.' Towards the end of the reasons for judgment, the Court made the following observation (at [49]): 'Finally, even if the issues that arise in relation to the decision under review are properly identified to the applicant, there may yet be cases which would yield to analysis in the terms identified by the Full Court of the Federal Court in Alphaone . It would neither be necessary nor appropriate to now foreclose that possibility.' | SUBJ |
Case110 | cited | Conwest Global Communications Corporation v Treasurer of the Commonwealth of Australia (1997) 147 ALR 509 | I am not prepared to infer that the respondent was not in fact satisfied that the acquisition is contrary to the national interest. In the notice of the order dated 23 February 2005 ([7] above) the respondent states that he is satisfied that the acquisition 'is contrary to the national interest'. The minute refers to the provisions of s 21A(4) and to that part of the subsection which refers to the national interest. It is clear that it was a matter which was brought to the respondent's attention. It is true that in terms of the minute the particular matters relevant to the national interest are not clearly identified. Furthermore, the respondent did not give reasons for his decision and he did not give evidence. However, care needs to be exercised in this area because of the broad nature of the concept of the national interest. A court will be slow to interfere with a Minister's decision as to what is in the national interest on the ground that a matter not taken into account was relevant to the national interest or a matter taken into account was irrelevant to the national interest: Leisure Entertainment Pty Ltd v Willis (1996) 64 FCR 205 at 220; Conwest Global Communications Corporation v Treasurer of the Commonwealth of Australia (1997) 147 ALR 509 at 525. A court will also be slow to interfere with a Minister's decision as to what is in the national interest under the guise of an argument that it should be inferred from the material before the decision-maker that he or she was not in fact satisfied that the acquisition was contrary to the national interest. | SUBJ |
Case111 | considered | Cunliffe v The Commonwealth [1994] HCA 44 ; (1994) 182 CLR 272 | In Cunliffe v The Commonwealth [1994] HCA 44 ; (1994) 182 CLR 272 (at 315-316) Brennan J (as he then was) made the following observations as to the aliens power (at 315-316) (footnotes omitted): 'The power to make laws with respect to aliens, unlike the majority of the powers conferred by s 51 of the Constitution , is not a power to make laws with respect to a function of government, a field of activity or a class of relationships: it is a power to make laws with respect to a class of persons. If, in its operation, a law affects a class of persons with respect to whom there is a power to make laws, the law may have the character of a law with respect to persons of that class. But it is neither necessary nor sufficient that the law should change, regulate or abolish the rights, duties, powers and privileges of the relevant class treated merely as members of the general public or of a substantially wider class than the class of persons who constitute the subject matter of the power. For example, a law which requires notification of symptoms of a disease after entry to Australia by aliens and citizens indifferently is not a law with respect to aliens though it may be a law with respect to quarantine. But if and to the extent that the law discriminates between the public at large and the relevant class of persons (whether textually or in its operation), there is an indicium that the law is a law with respect to persons of that class. That indicium may suffice to give the law the character of a law with respect to persons of that class and, if the discrimination is in a matter peculiarly significant to that class, the law will bear that character. In this respect, the aliens power is similar to the corporations power considered in Actors and Announcers Equity Association of Australia v Fontana Films Pty Ltd . In that case, s 45D(1)(b)(i) of the Trade Practices Act 1974 (Cth), which protected the businesses of trading corporations was held to be supported by s 51(xx) of the Constitution as a law with respect to trading corporations.' 51 A narrower view of the aliens power has been taken on occasion (see Gaudron J in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64 ; (1992) 176 CLR 1 at 57) but I am satisfied that the views expressed by Brennan J in Cunliffe v Commonwealth (supra) are the principles binding on me. The applicant argued the matter by reference to those principles. | SUBJ |
Case112 | considered | Director of Public Prosecutions, Re; Ex parte Lawle r [1994] HCA 10 ; (1994) 179 CLR 270 | nan | OBJ |
Case113 | cited | F Hoffman-La Roche and Co AG v Secretary for Trade and Industry [1975] AC 295 | The principles governing the applicant's third submission are relatively clear, although they can give rise to difficulties in terms of application. Ordinarily, a decision-maker is not required to invite comment from an applicant as to the decision-maker's provisional views or mental processes ( F Hoffman-La Roche and Co AG v Secretary for Trade and Industry [1975] AC 295 per Lord Diplock at 369). However, a decision-maker may be under an obligation to invite comment from an applicant on an adverse conclusion based on known material if that conclusion is not an obvious and natural conclusion from that material. In Alphaone , the Full Court of this Court (Northrop, Miles and French JJ) put the matter in the following way (at 591-592): 'Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.' | OBJ |
Case114 | considered | Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 | In Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 (' Kioa '), Mason J (as he then was) (at 582) referred to the fundamental rule of the common law doctrine of natural justice that, generally speaking, a person is entitled to know the case against him and to be given an opportunity of replying to it. Brennan J (at 612-616) referred to the authorities to the effect that the content of the rules of natural justice will depend on the circumstances of the particular case, including the nature of the jurisdiction or power exercised and the statutory provisions governing its exercise. Brennan J considered whether there was an irreducible minimum required by the principles of natural justice, namely, that 'the person concerned should have a reasonable opportunity of presenting his case' ( Russell v Duke of Norfolk [1949] 1 All ER 109 per Lord Tucker at 118). Brennan J said (at 615-616): 'Yet Tucker LJ said in Russell v Duke of Norfolk [179] , that there is an irreducible minimum required by the principles of natural justice, namely, that "the person concerned should have a reasonable opportunity of presenting his case " . If his Lordship's view be right, it would be necessary to hold that if, in some circumstances, perhaps unusual circumstances, a power may need to be exercised peremptorily, no exercise of that power is conditioned on observance of the principles of natural justice. But it would be wrong to attribute to a legislature such an intention. Rather, the intention to be implied when the statute is silent is that observance of the principles of natural justice conditions the exercise of the power although in some circumstances the content of those principles may be diminished (even to nothingness) to avoid frustrating the purpose for which the power was conferred. Accepting that the content of the principles of natural justice can be reduced to nothingness by the circumstances in which a power is exercised, a presumption that observance of those principles conditions the exercise of the power is not necessarily excluded at least where, in the generality of cases in which the power is to be exercised, those principles would have a substantial content.' 99 In Kioa , it was also made clear that an applicant entitled to natural justice is entitled to be told of adverse information obtained by the decision-maker from third parties and which he or she proposes to take into account and to be given the opportunity to respond to that information. Brennan J referred to the obligation and identified its limits in the following passage (at 628-629) (footnotes omitted): 'A person whose interests are likely to be affected by an exercise of power must be given an opportunity to deal with relevant matters adverse to his interests which the repository of the power proposes to take into account in deciding upon its exercise: Kanda v Government of Malay ; Ridge v Baldwin per Lord Morris; De Verteuil v Knaggs . The person whose interests are likely to be affected does not have to be given an opportunity to comment on every adverse piece of information, irrespective of its credibility, relevance or significance. Administrative decision-making is not to be clogged by inquiries into allegations to which the repository of the power would not give credence, or which are not relevant to his decision or which are of little significance to the decision which is to be made. Administrative decisions are not necessarily to be held invalid because the procedures of adversary litigation are not fully observed. As Lord Diplock observed in Bushell v Environment Secretary : "To 'over-judicialise' the inquiry by insisting on observance of the procedures of a court of justice which professional lawyers alone are competent to operate effectively in the interests of their clients would not be fair." Nevertheless in the ordinary case where no problem of confidentiality arises an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made. It is not sufficient for the repository of the power to endeavour to shut information of that kind out of his mind and to reach a decision without reference to it. Information of that kind creates a real risk of prejudice, albeit subconscious, and it is unfair to deny a person whose interests are likely to be affected by the decision an opportunity to deal with the information. He will be neither consoled nor assured to be told that the prejudicial information was left out of account. The allegation in par 22 was apparently credible, relevant and damaging. The failure to give Mr Kioa an opportunity to deal with it before making an order that Mr and Mrs. Kioa be deported left a risk of prejudice which ought to have been removed. There was nothing in the circumstances of the case - neither in the administrative framework created by the Act nor in any need for secrecy or speed in making the decision - which would have made it unreasonable to have given Mr and Mrs Kioa that opportunity. The failure to give Mr Kioa that opportunity amounts to a non-observance of the principles of natural justice.' The principle referred to in this passage is well established and, for present purposes, needs no further elaboration (see Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 (' Alphaone ') at 590-591. | OBJ |
Case115 | cited | Leisure Entertainment Pty Ltd v Willis (1996) 64 FCR 205 | I am not prepared to infer that the respondent was not in fact satisfied that the acquisition is contrary to the national interest. In the notice of the order dated 23 February 2005 ([7] above) the respondent states that he is satisfied that the acquisition 'is contrary to the national interest'. The minute refers to the provisions of s 21A(4) and to that part of the subsection which refers to the national interest. It is clear that it was a matter which was brought to the respondent's attention. It is true that in terms of the minute the particular matters relevant to the national interest are not clearly identified. Furthermore, the respondent did not give reasons for his decision and he did not give evidence. However, care needs to be exercised in this area because of the broad nature of the concept of the national interest. A court will be slow to interfere with a Minister's decision as to what is in the national interest on the ground that a matter not taken into account was relevant to the national interest or a matter taken into account was irrelevant to the national interest: Leisure Entertainment Pty Ltd v Willis (1996) 64 FCR 205 at 220; Conwest Global Communications Corporation v Treasurer of the Commonwealth of Australia (1997) 147 ALR 509 at 525. A court will also be slow to interfere with a Minister's decision as to what is in the national interest under the guise of an argument that it should be inferred from the material before the decision-maker that he or she was not in fact satisfied that the acquisition was contrary to the national interest. | SUBJ |
Case116 | considered | Minister for Immigration and Multicultural and Indigenous Affairs, Re, ex parte Palme [2003] HCA 56 ; (2003) 216 CLR 212 | The principle was referred to in passing by Gleeson CJ, Gummow and Heydon JJ in Re Minister for Immigration and Multicultural and Indigenous Affairs, ex parte Palme [2003] HCA 56 ; (2003) 216 CLR 212 at 219 [21] - [22] (footnotes omitted): 'Further, it does not readily appear how the principles of procedural fairness could be engaged in the manner contended for by the prosecutor. It may be accepted, as the prosecutor submitted, that his entitlement extended to the rebuttal of, and comment by way of submission upon, adverse material received by the decision-maker from other sources. That stops short of supporting a complaint of the nature essentially involved here of the "pitch" or "balance" in the statement of relevant considerations in the Submission. Further, as indicated above, there is no substance in any complaint of unfair or prejudicial "lack of balance". Reference was made by the prosecutor to the decision of the Full Court of the Federal Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd . Nothing there said supports any different conclusion to that just expressed. The Full Court's statement of principle was as follow: "Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question."' | SUBJ |
Case117 | considered | Mutual Pools and Staff Pty Ltd v The Commonwealth [1994] HCA 9 ; (1993) 179 CLR 155 | Certain laws have been held to fall outside s 51(xxxi) and within another supporting head of power. Examples include laws which impose a fine or penalty or laws effecting or authorising seizure of the property of enemy aliens or the condemnation of prize. The test for determining if a law falls outside the scope of s 51(xxxi) has been variously stated. In Mutual Pools and Staff Pty Ltd v The Commonwealth [1994] HCA 9 ; (1994) 179 CLR 155 Brennan J said (at 179-180): 'Although s 51(xxxi) abstracts from other heads of power the power of acquisition which that paragraph itself confers, it does not thereby abstract the power to prescribe the means appropriate and adapted to the achievement of an objective falling within another head of power where the acquisition of property without just terms is a necessary or characteristic feature of the means prescribed. In each of the cases in which laws for the acquisition of property without the provision of just terms have been held valid, such an acquisition has been a necessary or characteristic feature of the means selected to achieve an objective within power, the means selected being appropriate and adapted to that end. Therefore a law which selects and enacts means of achieving a legitimate objective is not necessarily invalid because the means involve an acquisition of property without just terms. What is critical to validity is whether the means selected, involving an acquisition of property without just terms, are appropriate and adapted to the achievement of the objective. The absence of just terms is relevant to that question, but not conclusive. Where the absence of just terms enhances the appropriateness of the means selected to the achievement of the legitimate objective, the law which prescribes those means is likely to fall outside s 51(xxxi) and within another supporting head of power. If it were otherwise, the guarantee of just terms would impair by implication the Parliament's capacity to enact laws effective to fulfil the purposes for which its several legislative powers are conferred. It would be erroneous so to construe grants of legislative power as to fetter their exercise by implying that s 51(xxxi) precluded the enactment of laws under other heads of power where the laws involved an acquisition of property without just terms, even though laws of that kind are appropriate and adapted to the execution of those powers in the public interest.' | SUBJ |
Case118 | cited | Navarrete v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1723 | Allsop J applied this principle in Navarrete v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1723. | OBJ |
Case119 | distinguished | Patterson, Re; Ex parte Taylor (2001) 207 CLR 291 | The applicant submits that the question whether the Treasurer is satisfied that an acquisition is contrary to the national interest is a jurisdictional fact and that it is not made out if the matters the Treasurer took into account do not support a reasonable and rational conclusion to that effect. She referred to the reasons for judgment of Kirby J in Re Patterson; Ex parte Taylor (2001) 207 CLR 291, in particular at 504-505 [338]. The reasons of Kirby J do seem to support the submission advanced by the applicant, but I would not apply them in this case. None of the other Justices in Re Patterson; Ex parte Taylor (supra) took a similar approach. For example, Gaudron J, who did discuss the concept of national interest, decided the case on the basis that the Minister asked herself the wrong question (at 417-420 [74]-[82]). If there is a jurisdictional fact in this case it is not whether the acquisition is contrary to the national interest but, rather, whether the Treasurer was satisfied that the acquisition is contrary to the national interest. A question of that nature would not turn, ordinarily at least, on the Court's conclusion as to whether the material before the Minister provided a reasonable or rational foundation for the conclusion reached by the Minister. 122 I reject the applicant's submission that the respondent was not in fact satisfied that the acquisition is contrary to the national interest. 123 For these reasons I make the following orders: 1. An order in the nature of certiorari quashing the order made by the respondent on 23 February 2005 under s 21A(4) of the Foreign Acquisitions and Takeovers Act 1975 (Cth) ('the Act') and relating to the land known as 481 Esplanade, Grange, in the State of South Australia, being the said land comprised in File Plan 42, Allotment 6, Hundred: Yatala; Subdivision: Grange ('the property'). 2. An order in the nature of mandamus, requiring the respondent to exercise his discretion pursuant to s 21A(4) of the Act and relating to the property according to law. | OBJ |
Case120 | cited | Pidoto v The State of Victoria [1943] HCA 37 ; (1943) 68 CLR 87 | I was referred to the authorities which have considered the circumstances in which a legislative provision which is partially invalid will be read down: Pidoto v The State of Victoria [1943] HCA 37 ; (1943) 68 CLR 87 per Latham CJ at 108-111; Victoria v The Commonwealth (supra) per Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ at 501-503. But for s 5A there might have been some difficulties in the way of reading down s 4(6)(a) so that it applied only to non-citizens not ordinarily resident in Australia. For example, there would be the difficulty of a law expressed in general terms and arguably no clear guide as to Parliament's intention as to an appropriate limitation. However, I do not think that those types of difficulties arise here, because by providing in s 5A what is in effect a statutory statement or definition of non-citizens who do and do not fall within the definition of natural persons caught by s 4(6)(a) the Federal Parliament has sufficiently revealed an intention that that subsection should operate in relation to non-citizens even if it is otherwise invalid. Section 4(6)(a) insofar as it applies to non-citizens is a valid exercise of the aliens power. 56 The applicant made reference to the Federal Parliament's power to make laws with respect to the acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws (s 51(xxxi)). Initially, the applicant contended that ss 4(6) and 21A of the Act could not be justified by reference to this head of power because, first, the acquisition was not for any purpose in respect of which the Parliament had power to make laws, and secondly, the acquisition of property was not on just terms. At the hearing, counsel for the applicant said that he was prepared to concede for the purposes of the argument that if there was an acquisition of property it was on just terms. The respondent contends first that ss 4(6) and 21A stand outside the scope of s 51(xxxi) and, secondly, that in any event, there was no acquisition of property within the terms of s 51(xxxi). In my opinion, both of the respondent's submissions should be accepted. | SUBJ |
Case121 | considered | Polyukhovich v The Commonwealth [1991] HCA 32 ; (1991) 172 CLR 501 | The scope of the external affairs power has been considered by the High Court in a number of recent decisions. Both parties referred extensively to the decisions in Polyukhovich v The Commonwealth [1991] HCA 32 ; (1991) 172 CLR 501 (' Polyukhovich ') and Victoria v The Commonwealth (Industrial Relations Case) [1995] HCA 45 ; (1995) 187 CLR 416 (' Victoria v The Commonwealth '). 30 In Polyukhovich , Dawson J said of the external affairs power (at 632): '[T]he power extends to places, persons, matters or things physically external to Australia. The word "affairs" is imprecise, but is wide enough to cover places, persons, matters or things. The word "external" is precise and is unqualified. If a place, person, matter or thing lies outside the geographical limits of the country, then it is external to it and falls within the meaning of the phrase "external affairs".' The reasons for judgment of the other Justices were to similar effect: Mason CJ at 528-531; Deane J at 599-603; Gaudron J at 695-696; McHugh J at 712-714. 31 In Victoria v The Commonwealth, Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ said (at 485) (footnotes omitted): 'Of course the scope of the legislative power is not confined to the implementation of treaties. The modern doctrine as to the scope of the power conferred by s 51(xxix) was adopted in Polyukhovich v The Commonwealth . Dawson J expressed the doctrine in these terms: "[T]he power extends to places, persons, matters or things physically external to Australia. The word 'affairs' is imprecise, but is wide enough to cover places, persons, matters or things. The word 'external' is precise and is unqualified. If a place, person, matter or thing lies outside the geographical limits of the country, then it is external to it and falls within the meaning of the phrase 'external affairs'." Similar statements of the doctrine are to be found in the reasons for judgment of other Justices: Mason CJ; Deane J; Gaudron J; and McHugh J. They must now be taken as representing the view of the Court.' 33 Gleeson CJ referred to the plaintiff's argument to the effect that the external affairs power was limited to a power to make laws with respect to relations between Australia and other countries. He said that to accept that argument would involve overruling the decision in Polyukhovich . Gleeson CJ held that Polyukhovich had been correctly decided and he said (at [10]) (footnotes omitted): 'For this argument to succeed, it would be necessary for the Court to depart from the decision in Polyukhovich v The Commonwealth , and to decide that the construction placed upon s 51(xxix) by every member of the Court in that case was wrong. In my view, the Court, upon reconsideration, should hold that Polyukhovich was correctly decided insofar as the decision bears upon the question of construction that arises in this case. Insofar as the decision goes beyond that, and bears, for example, upon Ch III of the Constitution , it is not presently relevant and it is unnecessary and inappropriate to say anything further about it. There was a difference between the view of s 51(xxix) taken by Mason CJ, Deane J, Dawson J, Gaudron J and McHugh J, on the one hand, and the views of Brennan J and Toohey J on the other. That difference does not affect the point presently in issue. Polyukhovich held that the external affairs power covers, but is not limited to, the matter of Australia's relations with other countries. It also includes a power to make laws with respect to places, persons, matters or things outside the geographical limits of, that is, external to, Australia. That conclusion represents the current doctrine of the Court on the external affairs power, and should be maintained because it is correct.' 34 Gummow, Hayne and Crennan JJ said (at [30]) that the modern doctrine of the scope of the power was as expressed by Dawson J in Polyukhovich (at 632). 35 Kirby J identified what he considered to be a number of difficulties with the 'geographical externality principle' and therefore put it to one side. He decided the case by reference to whether the laws were laws with respect to a 'matter of international concern' [66]-[117]. 36 It is well established that the grant of legislative power with respect to external affairs, as with other heads of power, should be construed with all the generality that the words admit. 39 The statement by Dawson J in Polyukhovich refers, among other things, to persons outside the geographical limits of Australia. 40 Clearly, a person not ordinarily resident in Australia might come to Australia from time to time, but I do not think that that means the concept of not being ordinarily resident in Australia lacks an element of externality. To say that a person is not ordinarily resident in Australia means that ordinarily that person is outside the geographical limits of Australia. 41 It follows that one matter, namely, a person not ordinarily resident in Australia, is a matter geographically external to Australia and the other matter, namely, the acquisition of Australian urban land is a matter geographically internal to Australia. 42 The question which arises is whether s 21A(4) and s 4(6)(a) must relate only to matters external to the geographical limits of Australia in order to fall within the external affairs power. If so, this law would fail to meet that test because it only operates when conduct is carried out in Australia, namely, the acquisition of urban land in Australia. The applicant submitted that Polyukovich was authority for the proposition that to fall within the external affairs power a law must deal 'entirely' or 'wholly' with a place, person, matter or thing geographically external to Australia. She referred to the reasons for judgment of Dawson J (at 641) and Gaudron J (at 695). The law in Polyukovich did deal entirely or wholly with acts, matters and things geographically external to Australia and it was held to be within the external affairs power. Their Honours' observations are to be read in that context and they are not authority for the proposition that a law only falls within the external affairs power if it deals entirely or wholly with a place, person, matter or thing geographically external to Australia. 43 I do not think the mere fact that the law is only engaged if conduct occurs within Australia of itself disqualifies the law from being a law with respect to external affairs. There seems to be no reason to say that simply because the law also relates to conduct in Australia or produces a certain result or effect in Australia that it is not a law with respect to external affairs. I reject the applicant's submission that s 4(6)(a) is invalid because it does not deal entirely with places, persons, matters or things outside the geographical limits of Australia. 44 The applicant submits in the alternative that the relevant provisions are not a law with respect to external affairs because the element of geographical externality is insufficient and because the pith and substance of the relevant provisions is conduct in Australia. 45 The question raised by that submission is not an easy one. It requires a characterisation of the relevant provisions. In Polyukhovich , Deane J said (at 602): 'Whatever may have been the position before the emergence of Australia as a fully independent sovereign State, it should now be accepted that any law which can properly be characterized as a law with respect to any matter, thing or person occurring or situate outside Australia is a law with respect to "External affairs" for the purposes of s 51(xxix). In referring to " a law with respect to any matter ... occurring ... outside Australia" , I intend to include, among other things, what Jacobs J described (see above) as "any matter or thing done or to be done or prohibited to be done outside the boundaries of the Commonwealth". As has been mentioned, that broad view of the scope of the power conforms with settled principles of constitutional construction.' 46 The relevant provisions only operate in relation to a class of persons who are geographically external to Australia. I think this can be said even though the actual criterion is that the person is not ordinarily resident in Australia. They are the only persons affected by the relevant provisions. The location of the class of persons affected by the relevant provisions is an important characteristic of them, albeit that another feature of them is conduct within Australia, that is to say, the acquisition of Australian urban land. In my opinion, for the purposes of determining whether the relevant provisions are a law with respect to external affairs, it is sufficient that the relevant provisions apply only to a class of persons geographically external to Australia. 47 In my opinion, the relevant provisions are a valid exercise of the external affairs power. | OBJ |
Case122 | applied | Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355 | An effective notice not having been given, the second question is whether the operation of s 25(1D) is contingent upon the giving of an effective notice. The circumstances in which an act done in breach of a condition regulating the exercise of a statutory power will invalidate that exercise were considered by the High Court in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355 at 388-390 per McHugh, Gummow, Kirby and Hayne JJ. Their Honours said that the relevant question is not whether the condition is mandatory or directory, but whether, by reference to the language of the relevant provision or provisions and the scope and object of the statute as a whole, it was a purpose of the legislation to invalidate an act done in breach of the condition. 71 In my opinion, by reason of the terms of s 25 , the operation of s 25(1D) is contingent upon the giving of an effective notice. Section 25(1) provides that the section has effect where the Treasurer receives a notice. Section 25(1D) refers to 'advice' given under s 25(1B). The 'advice' is of a decision under s 25(1A) , and a decision under s 25(1A) relates to 'the acquisition ... specified in the notice' and the decision which may be made is that there is 'no objection to the proposal specified in the notice'. Furthermore, the offence of contravening a condition referred to in s 25(1C) is linked to the advice of a decision under s 25(1B). In my opinion, there was no effective decision and therefore advice within the provisions of s 25 because there was no proposal specified in a notice and there was no proposal specified in a notice because the purported notice was not effective for the purposes of s 25(1A). 72 As far as the acquisition which took place in 1995 is concerned, s 25(1D) did not operate as a bar to the respondent exercising the power in s 21A(4). It was the acquisition which took place in 1995 which was relied on by the respondent for the purposes of his decision to make the divestiture order. | OBJ |
Case123 | cited | Russell v Duke of Norfolk [1949] 1 All ER 109 | In Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 (' Kioa '), Mason J (as he then was) (at 582) referred to the fundamental rule of the common law doctrine of natural justice that, generally speaking, a person is entitled to know the case against him and to be given an opportunity of replying to it. Brennan J (at 612-616) referred to the authorities to the effect that the content of the rules of natural justice will depend on the circumstances of the particular case, including the nature of the jurisdiction or power exercised and the statutory provisions governing its exercise. Brennan J considered whether there was an irreducible minimum required by the principles of natural justice, namely, that 'the person concerned should have a reasonable opportunity of presenting his case' ( Russell v Duke of Norfolk [1949] 1 All ER 109 per Lord Tucker at 118). Brennan J said (at 615-616): 'Yet Tucker LJ said in Russell v Duke of Norfolk [179] , that there is an irreducible minimum required by the principles of natural justice, namely, that "the person concerned should have a reasonable opportunity of presenting his case " . If his Lordship's view be right, it would be necessary to hold that if, in some circumstances, perhaps unusual circumstances, a power may need to be exercised peremptorily, no exercise of that power is conditioned on observance of the principles of natural justice. But it would be wrong to attribute to a legislature such an intention. Rather, the intention to be implied when the statute is silent is that observance of the principles of natural justice conditions the exercise of the power although in some circumstances the content of those principles may be diminished (even to nothingness) to avoid frustrating the purpose for which the power was conferred. Accepting that the content of the principles of natural justice can be reduced to nothingness by the circumstances in which a power is exercised, a presumption that observance of those principles conditions the exercise of the power is not necessarily excluded at least where, in the generality of cases in which the power is to be exercised, those principles would have a substantial content.' | OBJ |
Case124 | considered | Shaw v Minister for Immigration and Multicultural Affairs [2003] HCA 72 ; (2003) 218 CLR 28 | In Shaw v Minister for Immigration and Multicultural Affairs [2003] HCA 72 ; (2003) 218 CLR 28 Gleeson CJ, Gummow and Hayne JJ (Heydon J agreeing at 87 [190]) said (at 35[2]) (footnote omitted): 'The power conferred by s 51(xix) supports legislation determining those to whom is attributed the status of alien; the Parliament may make laws which impose upon those having this status burdens, obligations and disqualifications which the Parliament could not impose upon other persons. On the other hand, by a law with respect to naturalisation, the Parliament may remove that status, absolutely or upon conditions. In this way, citizenship may be seen as the obverse of the status of alienage.' | OBJ |
Case125 | cited | Smith v ANL Ltd [2000] HCA 58 ; (2000) 204 CLR 493 | I also agree with the respondent's second submission that in any event the degree of impairment of the applicant's rights with respect to the property is insufficient to attract the operation of s 51(xxxi). In Waterhouse v Minister for the Arts and Territories (1992) 43 FCR 175 the power of a Minister to grant or withhold a permit for an object to be exported to a purchaser under the Protection of Movable Cultural Heritage Act 1986 (Cth) was held to be an insufficient impairment of the rights of the owner of a valuable Australian painting to attract the operation of s 51(xxxi) (see the discussion of Black CJ and Gummow J at 180-185; Smith v ANL Ltd [2000] HCA 58 ; (2000) 204 CLR 493 per Gaudron and Gummow JJ at 505 [23]). In my opinion, similar reasoning can be applied here. The applicant is required to sell the property, but the class to whom she cannot sell the property is very limited (s 21A(7)). | OBJ |
Case126 | cited | SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 | Alphaone was also referred to in the recent decision of the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63. That case raised a question as to whether the Refugee Review Tribunal had advised, or sufficiently advised, an applicant for review of matters it relied on in dismissing the application. The case turned on the obligation of the Tribunal under s 425 of the Migration Act 1958 (Cth) and the facts of the case. The Court did make some observations about what was said to be a dichotomy between an obligation to advise of adverse conclusions which have been arrived at which would not obviously be open on the known material, and the lack of an obligation to advise of a decision-maker's mental processes or provisional views. After referring to the passage in Alphaone set out in [100] above, the Court said (at [30], [31] and [32]) (footnotes omitted) : 'Particular attention was directed in argument in this Court, as it had been in the courts below, to the Tribunal's conclusion that the three identified elements of the appellant's story were not "plausible". Was that a conclusion "which would not obviously be open on the known material"? Or was it no more than a part of the "mental processes" by which the Tribunal arrived at its decision? Stated in this way, the argument seeks to elucidate the content of the requirements of procedural fairness by setting up a dichotomy. There are two reasons to exercise considerable care in approaching the problem in that way. First, it is far from clear that the two categories that are identified (conclusions not obviously open on the known material, and mental processes of decision-making) encompass all possible kinds of case that may fall for consideration. Secondly, there is a very real risk that focusing upon these two categories will distract attention from the fundamental principles that are engaged. In Alphaone the Full Court rightly said: "It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material." (emphasis added) The Act defines the nature of the opportunity to be heard that is to be given to an applicant for review by the Tribunal. The applicant is to be invited "to give evidence and present arguments relating to "the issues arising in relation to the decision under review". (emphasis added) The reference to "the issues arising in relation to the decision under review" is important.' Towards the end of the reasons for judgment, the Court made the following observation (at [49]): 'Finally, even if the issues that arise in relation to the decision under review are properly identified to the applicant, there may yet be cases which would yield to analysis in the terms identified by the Full Court of the Federal Court in Alphaone . It would neither be necessary nor appropriate to now foreclose that possibility.' | OBJ |
Case127 | cited | Taylor, Re; Ex parte Natwest Australia Bank Ltd (1992) 37 FCR 194 | A natural person may be a citizen of Australia or a non-citizen. In the case of a natural person who is a citizen, there is no definition in the Act of 'resident' or 'ordinarily'. There are a large number of cases which have examined the meaning of those words in various statutory contexts. It seems that the words are not terms of art and the question is one of fact and degree and that a person may have two places of residence: Re Vassis; Ex parte Leung (1986) 9 FCR 518 at 524-525 per Burchett J; Re Taylor; Ex parte Natwest Australia Bank Limited (1992) 37 FCR 194 at 197 per Lockhart J. The particular problem of a person possibly being ordinarily resident in two places does not arise here because the criterion in s 4(6) is 'not ordinarily in Australia'. | SUBJ |
Case128 | cited | The Queen v Australian Industrial Court; Ex parte CLM Holdings Pty Ltd [1977] HCA 6 ; (1977) 136 CLR 235 | The drafting technique whereby s 21A is given an extended operation by s 4(6) is similar to that used in the Trade Practices Act 1974 (Cth) and considered by the High Court in The Queen v Australian Industrial Court; Ex parte CLM Holdings Pty Ltd [1977] HCA 6 ; (1977) 136 CLR 235. 14 The applicant is not within the definition of 'foreign person' within s 21A(1) of the Act . If s 21A applies to her it is by reason of the fact that she is a natural person not ordinarily resident in Australia within s 4(6)(a). | OBJ |
Case129 | cited | Theophanous v Commonwealth of Australia [2006] HCA 18 ; (2006) 80 ALJR 886 | In Re Director of Public Prosecutions; Ex parte Lawler (1994) 179 CLR 271, Deane and Gaudron JJ said (at 285): 'It is not necessary to repeat what we say in Mutual Pools with respect to the effect of the words "for any purpose in respect of which the Parliament has power to make laws". However, it is necessary to elaborate a little on the phrase "acquisition of property on just terms". Because s 51(xxxi) operates as a constitutional guarantee, the words "acquisition" and "property" are to be construed liberally . However, the power conferred by s 51(xxxi) is one with respect to "acquisition of property on just terms". That phrase must be read in its entirety and, when so read, it indicates that s 51(xxxi) applies only to acquisitions of a kind that permit of just terms. It is not concerned with laws in connexion with which "just terms" is an inconsistent or incongruous notion. Thus, it is not concerned with a law imposing a fine or penalty, including by way of forfeiture, or a law effecting or authorizing seizure of the property of enemy aliens or the condemnation of prize. Laws of that kind do not involve acquisitions that permit of just terms and, thus, they are not laws with respect to "acquisition of property", as that expression is used in s 51(xxxi). It follows that a law which effects or authorizes forfeiture of property in consequence of its use in the commission of an offence against the laws of the Commonwealth stands outside s 51(xxxi).' This passage from the reasons for judgment of Deane and Gaudron JJ was cited with approval by five Justices of the High Court in Theophanous v Commonwealth of Australia [2006] HCA 18 at [55] - [56] . 59 The Act controls the acquisition of property in Australia by a foreign corporation or a natural person not ordinarily resident in Australia. That control involves power to prohibit a proposed acquisition, to approve a proposed acquisition and, in relation to an acquisition which has taken place without approval, to require a person to dispose of the property acquired. It is difficult to see how the subject matter of the Act could be properly controlled or regulated without the power to make a divestiture order. 60 Having regard to the principles which I have identified, in my opinion ss 4(6) and 21A (4) stand outside the scope of s 51(xxxi). | SUBJ |
Case130 | cited | Vassis, Re; Ex parte Leung (1986) 9 FCR 518 | A natural person may be a citizen of Australia or a non-citizen. In the case of a natural person who is a citizen, there is no definition in the Act of 'resident' or 'ordinarily'. There are a large number of cases which have examined the meaning of those words in various statutory contexts. It seems that the words are not terms of art and the question is one of fact and degree and that a person may have two places of residence: Re Vassis; Ex parte Leung (1986) 9 FCR 518 at 524-525 per Burchett J; Re Taylor; Ex parte Natwest Australia Bank Limited (1992) 37 FCR 194 at 197 per Lockhart J. The particular problem of a person possibly being ordinarily resident in two places does not arise here because the criterion in s 4(6) is 'not ordinarily in Australia'. | SUBJ |
Case131 | considered | Victoria v The Commonwealth (Industrial Relations Case) [1995] HCA 45 ; (1995) 187 CLR 416 | The scope of the external affairs power has been considered by the High Court in a number of recent decisions. Both parties referred extensively to the decisions in Polyukhovich v The Commonwealth [1991] HCA 32 ; (1991) 172 CLR 501 (' Polyukhovich ') and Victoria v The Commonwealth (Industrial Relations Case) [1995] HCA 45 ; (1995) 187 CLR 416 (' Victoria v The Commonwealth '). 31 In Victoria v The Commonwealth, Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ said (at 485) (footnotes omitted): 'Of course the scope of the legislative power is not confined to the implementation of treaties. The modern doctrine as to the scope of the power conferred by s 51(xxix) was adopted in Polyukhovich v The Commonwealth . Dawson J expressed the doctrine in these terms: "[T]he power extends to places, persons, matters or things physically external to Australia. The word 'affairs' is imprecise, but is wide enough to cover places, persons, matters or things. The word 'external' is precise and is unqualified. If a place, person, matter or thing lies outside the geographical limits of the country, then it is external to it and falls within the meaning of the phrase 'external affairs'." Similar statements of the doctrine are to be found in the reasons for judgment of other Justices: Mason CJ; Deane J; Gaudron J; and McHugh J. They must now be taken as representing the view of the Court.' | OBJ |
Case132 | applied | Waterhouse v Minister for the Arts and Territories (1993) 43 FCR 175 | I also agree with the respondent's second submission that in any event the degree of impairment of the applicant's rights with respect to the property is insufficient to attract the operation of s 51(xxxi). In Waterhouse v Minister for the Arts and Territories (1992) 43 FCR 175 the power of a Minister to grant or withhold a permit for an object to be exported to a purchaser under the Protection of Movable Cultural Heritage Act 1986 (Cth) was held to be an insufficient impairment of the rights of the owner of a valuable Australian painting to attract the operation of s 51(xxxi) (see the discussion of Black CJ and Gummow J at 180-185; Smith v ANL Ltd [2000] HCA 58 ; (2000) 204 CLR 493 per Gaudron and Gummow JJ at 505 [23]). In my opinion, similar reasoning can be applied here. The applicant is required to sell the property, but the class to whom she cannot sell the property is very limited (s 21A(7)). | OBJ |
Case133 | considered | XYZ v The Commonwealth [2006] HCA 25 ; (2006) 80 ALJR 1036 | In XYZ v The Commonwealth [2006] HCA 25 ; (2006) 80 ALJR 1036 the High Court considered the validity of provisions of the Crimes Act 1914 (Cth) which made it an offence for a person defined as an Australian citizen or a resident of Australia while outside Australia to engage in sexual intercourse with a person under 16 years of age, or to commit an act of indecency on a person under 16 years of age. By a majority of five to two, the Court held that the legislation was valid under the external affairs power. Of the majority, Gleeson CJ and Kirby J each wrote separate judgments and Gummow, Hayne and Crennan JJ prepared joint reasons. Callinan and Heydon JJ dissented. | OBJ |
Case134 | referred to | Australian Securities Commission v Aust-Home Investments Limited (1993) 44 FCR 194 | Mr Spencer submitted that he had sought on a number of occasions to suggest a reasonable basis upon which this proceeding could be settled, and that the ACCC had acted unreasonably in refusing to engage with him. He referred to Australian Securities Commission v Aust-Home Investments Limited (1993) 44 FCR 194 at 201 where Hill J summarised the principles that would ordinarily apply with regard to costs when a proceeding has not gone to trial. His Honour said: "These cases seem to me support the following propositions being made. (1) Where neither party desires to proceed with litigation the Court should be ready to facilitate the conclusion of the proceedings by making a cost order: Stratford [ J T Stratford & Son Ltd v Lindley (No 2) [1969] 1 WLR 1547] and the SEQEB case [ South East Queensland Electricity Board v Australian Telecommunications Commission (unreported, Federal Court, 10 February 1989, Pincus J)] . (2) It will rarely, if ever, be appropriate, where there has been no trial on the merits or, for a Court determining how the costs of the proceeding should be borne to endeavour to determine the outcome of a hypothetical trial: Stratford . This will particularly be the case where a trial on the merits would involve complex factual matters where credit could be an issue. (3) In determining the question of costs it would be appropriate, however, for the Court to determine whether the applicant acted reasonably in commencing the proceedings and whether the respondent acted reasonably in defending them ( SEQEB ). (4) In a particular case it might be appropriate for the Court in its discretion to consider the conduct of a respondent prior to the commencement of the proceedings where such conduct may have precipitated the litigation: cf Sunday Times Newspaper Co Ltd v McIntosh (1933) 33 SR (NSW) 371. (5) Where the proceedings terminate after interlocutory relief has been granted, the Court may take into account the fact that interlocutory relief has been granted: cf Re Asiatic Electric Co Pty Ltd [1973] 1 NSWLR 603 at 606, a case which, however, depended upon the specific working of the statute under consideration." | OBJ |
Case135 | referred to | Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6 ; (1997) 186 CLR 622 | Mr Spencer also drew attention to a similar statement of principle by McHugh J in Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6 ; (1997) 186 CLR 622 at 626. 19 Mr Spencer argued that he had at all times acted reasonably in relation to the complaint brought against him by the ACCC. When the matter was first drawn to his attention, by a letter dated 14 April 2003 setting out the ACCC's concerns, he had caused his solicitors to reply to that letter, on 20 May 2003, responding in detail to the allegations. On 11 June 2003, the ACCC had written to his solicitors, thanking them for his response. That letter went on to say: "This office is currently assessing the information provided by you on behalf of your client. However, it is apparent a number of issues remain, therefore as soon as this office has completed its assessment of your response I will contact you to arrange a mutually suitable time to meet with you and your client to discuss this matter further." 20 It appears from the correspondence that was tendered before me that, despite the suggestion that there would be a meeting between the ACCC and Mr Spencer to discuss the matter further, no such meeting took place. Instead, on 11 August 2004, Deacons, acting on behalf of the ACCC, wrote to Mr Spencer's solicitors informing them that the matter had now been "fully investigated" and that the ACCC had determined to pursue it further. The letter went on to say that a proceeding had been instituted in the Federal Court that day, and enclosed a copy of the application and statement of claim. | OBJ |
Case136 | referred to | One.Tel Limited v Commissioner of Taxation [2000] FCA 270 ; (2000) 101 FCR 548 | The ACCC submitted that the principles governing the award of costs in cases where a matter does not proceed to a final hearing were correctly expounded by Burchett J in One.Tel Limited v Commissioner of Taxation [2000] FCA 270 ; (2000) 101 FCR 548 at 553: "In my opinion, it is important to draw a distinction between cases in which one party, after litigating for some time, effectively surrenders to the other, and cases where some supervening event or settlement so removes or modifies the subject of the dispute that, although it could not be said that one side has simply won, no issue remains between the parties except that of costs. In the former type of case, there will commonly be lacking any basis for an exercise of the Court's discretion otherwise than by an award of costs to the successful party. It is the latter type of case which more often creates problems, since there may be difficulty in discerning a clear reason why one party, rather than the other, should bear the costs. " 15 The ACCC contended that the present case fell within the first category described by Burchett J. Although in Smith v Airservices Australia Stone J made no mention of One.Tel Limited v Commissioner of Taxation , her Honour's discussion at [48]-[59], under the heading "Futility", deals helpfully with the second category of cases that his Honour identified. 32 In my view, this case falls squarely within the first category of case articulated by Burchett J in One.Tel Limited v Commissioner of Taxation . The appropriate order is that the second respondent pay the applicant's costs, any such costs to be taxed in default of agreement. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg. Associate: Dated: 11 April 2006 Counsel for the Applicant: Mr J.P. Moore Solicitors for the Applicant: Deacons Counsel for the Second Respondent Mr D.L. Bailey Solicitors for the Second Respondent: David Stagg Tonkin & Co Date of Written Submissions: 9 & 17 March 2006 and 4 April 2006 Date of Judgment: 11 April 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/396.html | OBJ |
Case137 | referred to | Smith v Airservices Australia [2005] FCA 997 ; (2005) 146 FCR 37 | In broad terms, the Federal Court Rules provide that where a party discontinues proceedings without the leave of the Court, the discontinuing party is liable to pay costs, unless the Court orders otherwise: see O 22 r 2 and 3, and O 62 r 26(1). No such rule is provided for where a proceeding is discontinued with the leave of the Court, although the starting point in principle is that the discontinuing party should meet the costs of the respondent: see Smith v Airservices Australia [2005] FCA 997 ; (2005) 146 FCR 37 per Stone J at [44]. 10 However, the starting point in resolving the issue is this case, namely who should bear the costs when a proceeding has been resolved by the making of consent orders, must be to consider the extent to which the ACCC succeeded in obtaining the relief that was initially sought. In that regard, the position is clear. Mr Spencer consented to the making of declarations by the Court that a series of agreements entered into by Contact Plus constituted "franchise agreements" within the meaning of clause 4 of the Code. He also consented to the making of declarations that Contact Plus had contravened the Code and therefore s 51AD of the Act , by failing to provide disclosure documents, and by failing to receive written and signed statements by the franchisees, as required. In addition, he consented to the making of directions regarding the termination of these franchise agreements, and other breaches of the Code. 11 The Court also declared, by consent, that Contact Plus had engaged in conduct that contravened ss 52 and 53 (g) of the Act regarding the representations made concerning the licence fee of $60,000 and the right of a franchisee to an area that was exclusive to that franchisee. Mr Spencer was declared to have aided, abetted, counselled or procured these contraventions of the Act , and to have been directly or indirectly knowingly concerned in, or party to, those contraventions. 12 A statement of agreed facts was appended to the consent orders that were sought. That statement contains findings of fact for the purposes of s 83 of the Act . 13 Finally, Mr Spencer agreed to injunctions in the terms sought, which would run for a period of three years from the date of the order made. He accepted orders that required him to provide each person with whom Contact Plus had entered into an agreement similar in terms to those of the franchise agreements that were the subject of this proceeding with a disclosure document that complied with the requirements of the Code, and a copy of the orders of the Court. 15 The ACCC contended that the present case fell within the first category described by Burchett J. Although in Smith v Airservices Australia Stone J made no mention of One.Tel Limited v Commissioner of Taxation , her Honour's discussion at [48]-[59], under the heading "Futility", deals helpfully with the second category of cases that his Honour identified. | OBJ |
Case138 | cited | Adelmann & Ham Boiler Corporation v Llanrwst Foundry Co (1928) 45 RPC 413 | GMCA submitted that both patents were but an "attempt to re-design a known tool so as to achieve impermissibly, a patent monopoly over what is really a marketing idea". The alleged invention, so the argument went, citing Maugham J in Adelmann & Ham Boiler Corporation v Llanrwst Foundry Co (1928) 45 RPC 413 at 420, was simply the application of a well known and well understood piece of mechanism to achieve an obvious advantage. The mere "positioning" of the handle for a known tool in order to achieve a known result was not a manner of manufacture. | SUBJ |
Case139 | cited | Cleveland Graphite Bronze Co v Glacier Metal Co Ltd (1950) 67 RPC 149 | Claims must be determined in a practical and common sense manner: Nesbit v Impro at 95; Minnesota Mining at 274. In Cleveland Graphite Bronze Co v Glacier Metal Co Ltd (1950) 67 RPC 149 at 154 it was said that the claims must be as precise "as the subject admits of". The fact that Dr Stark had no problems on first reading is of significance. It is not the role of an independent expert to seek out difficulties or to read a patent with, to borrow an expression from administrative law, "an eye keenly attuned to the perception of error": Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 322 ; (1993) 43 FCR 280 at 287 quoted in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 272. This episode reflects on Dr Stark's credibility as an independent expert. Generally I found Dr Stark lacked objectivity and detachment. He appeared keen to raise every conceivable argument in favour of the party which retained him. | SUBJ |
Case140 | cited | Colbeam Palmer Ltd v Stock Affiliates Pty Ltd [1968] HCA 50 ; (1968) 122 CLR 25 | However, statutory rights to damages or an account of profits conferred on owners or exclusive licensees of intellectual property only have effect for the period that a plaintiff in fact has the relevant status. Thus in Colbeam Palmer Ltd v Stock Affiliates Pty Ltd [1968] HCA 50 ; (1968) 122 CLR 25 Windeyer J held (at 36) that an account of profits should be taken to terminate as at the date the plaintiff assigned the trade mark in question and (at 41) that the assignee, having been joined as a plaintiff, should be entitled to an account of profits from the date of assignment. Similarly in Stack v Brisbane City Council (1996) 35 IPR 296 at 302 Drummond J held that where an equitable title had been converted into legal title by assignment, the assignor would have the right to an account of profits made by the infringers in the period up to the assignment and that the assignee alone would have the right to any profits made by the infringers after that date. Likewise, if an election were made for damages the assignee is the proper claimant for that relief, but only as from the date its equitable ownership became converted by registration into full legal and beneficial ownership of the patent. | SUBJ |
Case141 | cited | Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 322 ; (1993) 43 FCR 280 | Claims must be determined in a practical and common sense manner: Nesbit v Impro at 95; Minnesota Mining at 274. In Cleveland Graphite Bronze Co v Glacier Metal Co Ltd (1950) 67 RPC 149 at 154 it was said that the claims must be as precise "as the subject admits of". The fact that Dr Stark had no problems on first reading is of significance. It is not the role of an independent expert to seek out difficulties or to read a patent with, to borrow an expression from administrative law, "an eye keenly attuned to the perception of error": Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 322 ; (1993) 43 FCR 280 at 287 quoted in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 272. This episode reflects on Dr Stark's credibility as an independent expert. Generally I found Dr Stark lacked objectivity and detachment. He appeared keen to raise every conceivable argument in favour of the party which retained him. | SUBJ |
Case142 | cited | F Hoffman-La Roche & Co v Commissioner of Patents [1971] HCA 3 ; (1971) 123 CLR 529 | The claims must be fairly based on the matter described in the specification: Patents Act s 40(3). The body of the specification must provide a "real and reasonably clear disclosure" of the invention claimed: F Hoffman-La Roche & Co v Commissioner of Patents [1971] HCA 3 ; (1971) 123 CLR 529 at 539; Lockwood 1 at [69]. 33 GMCA submits that the claims are not fairly based. It says that the claims, in particular claim 1, are not limited to power saws but extend to all manner of power tools. They do not include "essential features" in the specification, viz the reciprocation frequency and stroke length ranges. They also refer to a "plurality" of positions whereas in fact there are only two. 34 Whatever may be the position in relation to claim 1, the claims from claim 3 onwards, and in particular the critical claim 6, are clearly confined to power saws. | OBJ |
Case143 | cited | Foggin v Lacey (2003) 57 IPR 225 | The principles are stated by Gummow J in Wanem Pty Ltd v John Tekiela [1990] FCA 372 ; (1990) 19 IPR 435 at 440, cited with approval by the Full Court in Foggin v Lacey (2003) 57 IPR 225 at [13]. Gummow J said: ...(i) first impressions are important in determining whether there is an infringement of a design, (ii) an obvious imitation is one which is not the same as the registered design but is a copy apparent to the eye notwithstanding slight differences, (iii) the question must be looked at as one of substance and by examining the essential features of the design, (iv) a closer correspondence between the registered design and the alleged infringing design is necessary to satisfy the test of obvious imitation than that of fraudulent imitation, (v) precise mathematical comparisons or matters of measurements or ratios, which form no part of the mental picture which the eye conveys to the brain of shape or configuration suggested by the design, are not to be applied as the test of infringement; appearance to the eye is the critical issue, and (vi) questions of infringement must not be determined by a narrow or overly technical approach in comparison between the design and the alleged infringement, lest the registration be sapped of its worth to the registered owner. 116 As the Full Court in Foggin noted, it is for the Court to rule on the meaning of the design and question of infringement as determined by reference to the eye of the consumer. 117 My first, and continuing, impression is that product B is significantly different in appearance from the Design. In particular the shank is quite different. What is in issue here is an everyday product. To the lay person this looks like a saw, obviously not a hand saw but one with some attachment in the shape of the shank. I regard this as more important than differences in angles and proportions. Put simply, the Design shows a saw blade with a shank; product B is a saw with a different sort of shank. 118 As might be expected experts on either side gave differing views. Professor Redmond thought that the dominant aspect of the Design was the blade and that product B was "closely similar, such that it has the same appeal to the eye as the design in the (Design)". He saw the shank as an "attachment device" but the saw blade was the "core or crucial visual element". The shank was "peripheral" or "of less significance". Nevertheless I think the ordinary consumer would see a panel saw blade as a piece of metal with teeth along the bottom and a sloping top. The shank is at one end, and thus is in a literal sense peripheral, but it is, and would be seen as, an integral and distinctive part of the article. | SUBJ |
Case144 | cited | General Tire & Rubber Co v Firestone Tyre and Rubber Co Ltd [1972] RPC 457 | In the case of an anticipation in documentary form, the document must contain "clear and unmistakable directions to do what the patentee claims to have invented": General Tire & Rubber Co v Firestone Tyre and Rubber Co Ltd [1972] RPC 457 at 486. 44 Although GMCA originally pleaded some 22 anticipations, by trial these had been reduced to 13. In final submissions only seven were relied on. The general comment can be made that although some of the devices could perhaps as a matter of physical possibility be used as a jigsaw there was no clear direction that this was their intended use. 45 This device was in evidence and is also described in the Bosch 1993/94 Catalogue. It is described as a "multisaw" and is pictured as being used in panel saw mode. There are photographs of various blade accessories such as a rasp, file and various brushes and also the statement: "In addition, the Bosch jigsaw accessory range is available for the multisaw". | OBJ |
Case145 | referred to | Grant v Commissioner of Patents (2006) 69 IPR 221 | Much of this argument overlapped with GMCA's case on description, utility, novelty and obviousness. To the extent that it did not, it must be rejected. The alleged invention did not involve an abstract idea, like that considered in Grant v Commissioner of Patents (2006) 69 IPR 221. It concerned machines and their operation and thus "something of a corporeal and substantial nature": R v Wheeler (1819) 2 B & Ald 345 at 350, cited in Lockwood Security Products Pty Ltd v Doric Products Pty Ltd (No 2) [2007] HCA 21 ; (2007) 72 IPR 447 at [66] ( Lockwood 2 ). | SUBJ |
Case146 | cited | Kimberly-Clark Australia Pty Limited v Arico Trading International Pty Limited [2001] HCA 8 ; (2001) 207 CLR 1 | In any case, the specification does not put forward the "major vector element" as something "contribut(ing) to the achievement of the invention". The invention is not for a method of holding a power saw; it is for a power saw capable of fulfilling different functions. As already explained, the (perhaps overly scientific) term "vector" is but a word used in describing these two functions. The specification contains quite detailed explanations and diagrams of the preferred embodiment. There is no obligation on a patentee to describe more than a single preferred form of the invention. The ground of insufficiency is not made out merely because it is said there are other ways of carrying out the invention as to which the specification is not sufficiently precise: No-Fume Ltd v Frank Pitchford & Co Ltd (1935) 52 RPC 231 at 248. The test is whether the disclosure in the specification will "enable the addressee to produce something within each claim without new inventions or additions or prolonged study of matters presenting initial difficulty": Kimberly-Clark Australia Pty Limited v Arico Trading International Pty Limited [2001] HCA 8 ; (2001) 207 CLR 1 at [25] . This requirement has been satisfied. | SUBJ |
Case147 | cited | Lockwood Security Products Pty Ltd v Doric Products Pty Ltd (No 2) [2007] HCA 21 ; (2007) 72 IPR 447 | Much of this argument overlapped with GMCA's case on description, utility, novelty and obviousness. To the extent that it did not, it must be rejected. The alleged invention did not involve an abstract idea, like that considered in Grant v Commissioner of Patents (2006) 69 IPR 221. It concerned machines and their operation and thus "something of a corporeal and substantial nature": R v Wheeler (1819) 2 B & Ald 345 at 350, cited in Lockwood Security Products Pty Ltd v Doric Products Pty Ltd (No 2) [2007] HCA 21 ; (2007) 72 IPR 447 at [66] ( Lockwood 2 ). | SUBJ |
Case148 | cited | Lockwood Security Products Pty Ltd v Doric Products Pty Ltd [2004] HCA 58 ; (2004) 217 CLR 274 | GMCA say that the specification "does not explain how [counsel's emphasis] the major vector element contributes to the achievement of the invention (which is said to be a useful tool)". Reliance was placed on a passage in Lockwood Security Products Pty Ltd v Doric Products Pty Ltd [2004] HCA 58 ; (2004) 217 CLR 274 at [99] ( Lockwood 1 ). However, that passage is not in point. It is in the context of a fair basing argument and says that a claim cast in the form of a consistory clause is not fairly based if other parts of the specification show that the invention is narrower than that consistory clause. The inquiry, their Honours stress, is into what the body of the specification read as a whole discloses as the invention. | SUBJ |
Case149 | cited | Minnesota Mining & Manufacturing Co v Beiersdorf (Aust) Ltd [1980] HCA 9 ; (1980) 144 CLR 253 | Claims must be construed in a practical, common sense manner, and are valid so long as they provide a workable standard suitable to the intended use: Minnesota Mining & Manufacturing Co v Beiersdorf (Aust) Ltd [1980] HCA 9 ; (1980) 144 CLR 253 at 273; Nesbit Evans Group Australia Pty Ltd v Impro Ltd (1997) 39 IPR 56 at 95. 78 Claims must be determined in a practical and common sense manner: Nesbit v Impro at 95; Minnesota Mining at 274. In Cleveland Graphite Bronze Co v Glacier Metal Co Ltd (1950) 67 RPC 149 at 154 it was said that the claims must be as precise "as the subject admits of". The fact that Dr Stark had no problems on first reading is of significance. It is not the role of an independent expert to seek out difficulties or to read a patent with, to borrow an expression from administrative law, "an eye keenly attuned to the perception of error": Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 322 ; (1993) 43 FCR 280 at 287 quoted in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 272. This episode reflects on Dr Stark's credibility as an independent expert. Generally I found Dr Stark lacked objectivity and detachment. He appeared keen to raise every conceivable argument in favour of the party which retained him. | SUBJ |
Case150 | cited | Nesbit Evans Group Australia Pty Ltd v Impro Ltd (1997) 39 IPR 56 | Claims must be construed in a practical, common sense manner, and are valid so long as they provide a workable standard suitable to the intended use: Minnesota Mining & Manufacturing Co v Beiersdorf (Aust) Ltd [1980] HCA 9 ; (1980) 144 CLR 253 at 273; Nesbit Evans Group Australia Pty Ltd v Impro Ltd (1997) 39 IPR 56 at 95. 78 Claims must be determined in a practical and common sense manner: Nesbit v Impro at 95; Minnesota Mining at 274. In Cleveland Graphite Bronze Co v Glacier Metal Co Ltd (1950) 67 RPC 149 at 154 it was said that the claims must be as precise "as the subject admits of". The fact that Dr Stark had no problems on first reading is of significance. It is not the role of an independent expert to seek out difficulties or to read a patent with, to borrow an expression from administrative law, "an eye keenly attuned to the perception of error": Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 322 ; (1993) 43 FCR 280 at 287 quoted in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 272. This episode reflects on Dr Stark's credibility as an independent expert. Generally I found Dr Stark lacked objectivity and detachment. He appeared keen to raise every conceivable argument in favour of the party which retained him. | SUBJ |
Case151 | cited | Nicaro Holdings Pty ltd v Martin Engineering Co (1990) 16 IPR 545 | It is not in dispute that GMCA has offered for sale and sold in Australia two allegedly infringing products, referred to in this case as T1 and T2. Black & Decker has to show that the GMCA products take each and every essential integer of the claims relied on (claims 1 and 3 to 8 of the Standard Patent): Nicaro Holdings Pty ltd v Martin Engineering Co (1990) 16 IPR 545 at 559-560. 73 A photograph of T1: 74 The only integers in contest are those designated 1.8 and 1.9 in claim 1 of the Patent. Integer 1.8 it will be recalled is as follows (emphasis added): and wherein the handle is positioned such that a force applied thereto by the user in a first of the said plurality of positions comprises a major vector transmitted along a line of action extending substantially parallel to the line of linear reciprocation. Integer 1.9 is in the same terms save only that the word "parallel" is replaced by the word "transverse". These integers obviously relate to the operation of the device in its panel saw (integer 1.8) and jigsaw (integer 1.9) modes. | OBJ |
Case152 | cited | No-Fume Ltd v Frank Pitchford & Co Ltd (1935) 52 RPC 231 | In any case, the specification does not put forward the "major vector element" as something "contribut(ing) to the achievement of the invention". The invention is not for a method of holding a power saw; it is for a power saw capable of fulfilling different functions. As already explained, the (perhaps overly scientific) term "vector" is but a word used in describing these two functions. The specification contains quite detailed explanations and diagrams of the preferred embodiment. There is no obligation on a patentee to describe more than a single preferred form of the invention. The ground of insufficiency is not made out merely because it is said there are other ways of carrying out the invention as to which the specification is not sufficiently precise: No-Fume Ltd v Frank Pitchford & Co Ltd (1935) 52 RPC 231 at 248. The test is whether the disclosure in the specification will "enable the addressee to produce something within each claim without new inventions or additions or prolonged study of matters presenting initial difficulty": Kimberly-Clark Australia Pty Limited v Arico Trading International Pty Limited [2001] HCA 8 ; (2001) 207 CLR 1 at [25] . This requirement has been satisfied. 35 The reciprocation frequency and stroke length ranges are matters of guidance for the skilled addressee. They are not essential to the working of the claimed invention. As Maugham LJ said in No-Fume at 248, the specification does not have to define ... all the proportions, or all the dimensions, or all the temperatures, or all the materials which would give a similar or like result. 36 The preferred embodiment makes it clear that only two uses are disclosed. 37 The invention, so far is claimed in any claim, must be useful: Patents Act s 18(1)(c). This means that the invention as claimed must produce the desired result. | SUBJ |
Case153 | cited | Polyaire Pty Ltd v K-Aire Pty Ltd [2005] HCA 32 ; (2005) 221 CLR 287 | In Polyaire Pty Ltd v K-Aire Pty Ltd [2005] HCA 32 ; (2005) 221 CLR 287 the High Court considered the concept of fraudulent imitation under the 1906 Act. Their Honours held (at [36]) that in order to find a fraudulent imitation it was not necessary to show that the differences between alleged infringement and design had been made to disguise the copying. In this respect their Honours at [28] qualified the statement in Malleys Limited v J W Tomlin Pty Ltd [1961] HCA 77 ; (1961) 180 CLR 120 at 127. In Polyaire their Honours at [17] accepted the submission that the application of a "fraudulent imitation" requires that the application of the design be with knowledge of the existence of the registration and of the absence of consent to its use, or with reason to suspect those matters, and that the use of the design produces what is an "imitation" within the meaning of para (a) [of s 30(1)]. This... is the knowledge, belief or intent which renders the conduct fraudulent. In a footnote to that passage their Honours say: See as to the permissible inference by a jury of fraud against a party who "wilfully shuts his eyes" the judgment of Lord Esher MR in English and Scottish Mercantile Investment Co Ltd v Brunton [1892] 2 QB 700 at 707-708. 114 As the submissions of Black & Decker appear to accept, the knowledge, belief or intent which does or does not render the conduct fraudulent is that of the Chinese manufacturer. It is the manufacturer who is said to have "applied" the Design outside Australia. I see no reason to disbelieve the evidence of Mr Coates. It seems inherently unlikely that the Chinese manufacturer had knowledge of the Australian Designs Act; still less that the Design was registered under it. There is no basis for finding that the manufacturer had reason to suspect such registration. The onus on Black & Decker to establish fraudulent imitation has not been discharged. | SUBJ |
Case154 | cited | R v Wheeler (1819) 2 B & Ald 345 | Much of this argument overlapped with GMCA's case on description, utility, novelty and obviousness. To the extent that it did not, it must be rejected. The alleged invention did not involve an abstract idea, like that considered in Grant v Commissioner of Patents (2006) 69 IPR 221. It concerned machines and their operation and thus "something of a corporeal and substantial nature": R v Wheeler (1819) 2 B & Ald 345 at 350, cited in Lockwood Security Products Pty Ltd v Doric Products Pty Ltd (No 2) [2007] HCA 21 ; (2007) 72 IPR 447 at [66] ( Lockwood 2 ). | SUBJ |
Case155 | cited | Royal British Bank v Turquand (1856) 6 E & B 327 | However, s 127(1) is not mandatory. Section 127(4) provides that the section does not limit the ways in which a company may execute a document (including a deed). As to authority to execute, persons dealing with BDA, including BDI, were entitled to assume that the company's constitution had been complied with and that a director had been duly appointed and had authority to exercise the powers customarily performed by a director of a similar company: s 129(1) , (3), the statutory equivalent of the Rule in Turquand's Case ( Royal British Bank v Turquand (1856) 6 E & B 327). Section 128(1) provides that a person is entitled to make the assumptions in s 129 and a person is not entitled to make an assumption under s 129 if they knew the assumption was incorrect. While there is no evidence in the present case as to the powers of a director of a similar company to BDA, the onus is on GMCA to establish the contrary. In any event, it seems inherently likely that a director of a company similar to BDA, a wholly owned subsidiary of an overseas company, would have authority to execute on the company's behalf a document of the kind executed by Ms Armstrong. A degree of informality is to be expected. The reality is that Ms Armstrong was not, in the time-honoured expression, engaged on a frolic of her own. 145 In relation to BDI, Mr Pratt was authorized, by virtue of his office, to execute the Deed. The Deed was clearly in the ordinary course of business of BDI in that it dealt with the licensing of intellectual property, which seems to have been BDI's only business. 146 Black & Decker's case is that because the December 2006 Deed made the March 2006 letter of termination "null and void ab initio", the 1987 Agreement, as varied by the 2005 Deed, continued uninterrupted. As a consequence, BDA is to be treated as having the status of exclusive licensee from at least the date of the 2005 Deed (its case that such status existed from the 1987 Agreement has been rejected for the reasons already given). | SUBJ |
Case156 | cited | Stack v Brisbane City Council (1996) 35 IPR 296 | However, statutory rights to damages or an account of profits conferred on owners or exclusive licensees of intellectual property only have effect for the period that a plaintiff in fact has the relevant status. Thus in Colbeam Palmer Ltd v Stock Affiliates Pty Ltd [1968] HCA 50 ; (1968) 122 CLR 25 Windeyer J held (at 36) that an account of profits should be taken to terminate as at the date the plaintiff assigned the trade mark in question and (at 41) that the assignee, having been joined as a plaintiff, should be entitled to an account of profits from the date of assignment. Similarly in Stack v Brisbane City Council (1996) 35 IPR 296 at 302 Drummond J held that where an equitable title had been converted into legal title by assignment, the assignor would have the right to an account of profits made by the infringers in the period up to the assignment and that the assignee alone would have the right to any profits made by the infringers after that date. Likewise, if an election were made for damages the assignee is the proper claimant for that relief, but only as from the date its equitable ownership became converted by registration into full legal and beneficial ownership of the patent. | SUBJ |
Case157 | cited | Ullrich Aluminium Pty Ltd v Dias Aluminium Products Pty Ltd [2006] FCAFC 119 ; (2006) 153 FCR 437 | Section 17 of the Designs Act 1906 requires that a design be new or original to enable it to be registered. It must be "substantially novel or substantially original, having regard to the nature of the article to which the design is applied": Ullrich Aluminium Pty Ltd v Dias Aluminium Products Pty Ltd [2006] FCAFC 119 ; (2006) 153 FCR 437 at [3] . GMCA's expert Mr Brown considered nine prior saw blades as follows: (i) Canadian Patent No. 636160; (ii) US Patent No. 3,802,079; (iii) US Patent No. 2,621,689; (iv) Extract from "Popular Mechanics Encyclopaedia of Tools and Techniques" by Oldham, 1994, page 132; (v) "Power Hand Tool Handbook", pages 40 41, 1980 by Case; (vi) Bourke Patent US No. 5,755,293; (vii) Black & Decker European Patent No. 0949 032; (viii) pages 94, 95 and 106 from "The Complete Book of Tools" by Jackson and Day; (ix) Disston No. 12 and D23 lightweight saws. 105 With the exception of the Disston saw blades all of these references were provided to Mr Brown by GMCA's solicitors. None of the references contain a blade with a notch at the front or the same shape as the Design. The Disston blades lack the notch at the front of the Design and any shank at the rear and an angled front edge. 106 Black & Decker's expert Professor Redmond considered the references and was of the view that none were substantially similar visually to the Design. In my view none of the references showed blades which were substantially similar visually to the Design. | OBJ |
Case158 | cited | Wanem Pty Ltd v John Tekiela [1990] FCA 372 ; (1990) 19 IPR 435 | The principles are stated by Gummow J in Wanem Pty Ltd v John Tekiela [1990] FCA 372 ; (1990) 19 IPR 435 at 440, cited with approval by the Full Court in Foggin v Lacey (2003) 57 IPR 225 at [13]. Gummow J said: ...(i) first impressions are important in determining whether there is an infringement of a design, (ii) an obvious imitation is one which is not the same as the registered design but is a copy apparent to the eye notwithstanding slight differences, (iii) the question must be looked at as one of substance and by examining the essential features of the design, (iv) a closer correspondence between the registered design and the alleged infringing design is necessary to satisfy the test of obvious imitation than that of fraudulent imitation, (v) precise mathematical comparisons or matters of measurements or ratios, which form no part of the mental picture which the eye conveys to the brain of shape or configuration suggested by the design, are not to be applied as the test of infringement; appearance to the eye is the critical issue, and (vi) questions of infringement must not be determined by a narrow or overly technical approach in comparison between the design and the alleged infringement, lest the registration be sapped of its worth to the registered owner. | OBJ |
Case159 | considered | Australian Competition and Consumer Commission v World Netsafe (No. 1) [2002] FCA 526 ; (2002) 119 FCR 303 | ACCC then made the following submissions as to the general principles against which the motion should be determined: (1) The power to make the direction is conferred by s 47A(1) of the Act. That subsection provides: The Court or a Judge may, for the purpose of any proceeding, direct or allow testimony to be given by videolink, audiolink or other appropriate means. (2) Section 47C provides: (1) The Court or a Judge must not exercise the power conferred by subsection 47A(1) or section 47B in relation to a video link unless the Court or the Judge is satisfied that the following conditions are met in relation to the video link: ... (b) the place at which the remote person is located is equipped with facilities (for example, television monitors) that enable all eligible persons present in that place to see and hear each eligible person who is present in the courtroom or other place where the Court or the Judge is sitting; ... (6) For the purposes of the application of this section to a particular proceeding, eligible persons are such persons as the Court or a Judge considers should be treated as eligible persons for the purposes of that proceeding. (Emphasis in original) (3) The discretion in s 47A is to be exercised judicially. (4) It is to be exercised recognising 'that there are deficiencies when evidence is taken by videolink when compared with evidence given viva voce' per Spender J in Australian Competition and Consumer Commission v World Netsafe (No. 1) [2002] FCA 526 ; (2002) 119 FCR 303 at 305. His Honour continued by quoting from Giles CJ of the Commercial Division of the Supreme Court of New South Wales, in Sunstate Airlines (Qld) Pty Ltd v First Chicago Australia Securities Ltd (unreported, NSWSC, 11 March 1997) at [4]: Cross-examination may be more difficult when video evidence is taken because documents have to be transmitted or produced in an unfamiliar manner, because of the delay in voice transmission, or for other reasons and the effectiveness of cross-examination as a weapon in the fight for truth should not be unduly hindered. And in many cases the court is assisted in fact by observance of what is misleadingly called the demeanour of the witnesses upon which the taking of video evidence may impact. Those observations of Spender J were cited with approval by a Full Court of this Court in Odhiambo v Minister for Immigration & Multicultural Affairs [2002] FCAFC 194 ; (2002) 122 FCR 29 at [97] . | OBJ |
Case160 | applied | Australian Securities & Investments Commissioner v Rich & Ors (2004) 49 ACSR 578 | power conferred by s 47A(1) of the Act is, subject to the Court and judge being satisfied that the conditions of s 47C(1) are met in relation to the video-link, an exercise of discretion that would not be ordered unless the Court or judge was satisfied that recourse to such a link was, in the particular circumstances of the case, appropriate. So understood, what was done in other cases is only of limited assistance, if any. So much was recognised by the Supreme Court of New South Wales (Austin J) in Australian Securities & Investments Commissioner v Rich & Ors (2004) 49 ACSR 578 at [16], although his Honour went on to observe that there are broadly two approaches exhibited by the observations in the cases one generally in favour of the use of audiovisual absent any impediment telling against its use; and the other a more cautious approach requiring good reason to be shown before leave to give evidence by means of video-link was granted. At [19] his Honour observed: Apart from dealing with obvious practical matters such as comparative costs and the difficulty created by differences in time zones, the cases touch upon some recurring themes: the appropriateness of audiovisual facilities for centrally important evidence, the assessment of credit where evidence is given by audiovisual link, difficulties raised by the use of documents for cross-examination in audiovisual evidence, technological difficulties due to lapse of time between transmission and receipt of questions and answers, and difficulties posed by the use of audiovisual facilities where the cross-examination is lengthy. There are also comments on the general approach to be taken by the court to a proposal for evidence to be adduced using audiovisual facilities. I shall refer briefly to each of these matters. | OBJ |
Case161 | referred to | Odhiambo v Minister for Immigration & Multicultural Affairs [2002] FCAFC 194 ; (2002) 122 FCR 29 | ACCC then made the following submissions as to the general principles against which the motion should be determined: (1) The power to make the direction is conferred by s 47A(1) of the Act. That subsection provides: The Court or a Judge may, for the purpose of any proceeding, direct or allow testimony to be given by videolink, audiolink or other appropriate means. (2) Section 47C provides: (1) The Court or a Judge must not exercise the power conferred by subsection 47A(1) or section 47B in relation to a video link unless the Court or the Judge is satisfied that the following conditions are met in relation to the video link: ... (b) the place at which the remote person is located is equipped with facilities (for example, television monitors) that enable all eligible persons present in that place to see and hear each eligible person who is present in the courtroom or other place where the Court or the Judge is sitting; ... (6) For the purposes of the application of this section to a particular proceeding, eligible persons are such persons as the Court or a Judge considers should be treated as eligible persons for the purposes of that proceeding. (Emphasis in original) (3) The discretion in s 47A is to be exercised judicially. (4) It is to be exercised recognising 'that there are deficiencies when evidence is taken by videolink when compared with evidence given viva voce' per Spender J in Australian Competition and Consumer Commission v World Netsafe (No. 1) [2002] FCA 526 ; (2002) 119 FCR 303 at 305. His Honour continued by quoting from Giles CJ of the Commercial Division of the Supreme Court of New South Wales, in Sunstate Airlines (Qld) Pty Ltd v First Chicago Australia Securities Ltd (unreported, NSWSC, 11 March 1997) at [4]: Cross-examination may be more difficult when video evidence is taken because documents have to be transmitted or produced in an unfamiliar manner, because of the delay in voice transmission, or for other reasons and the effectiveness of cross-examination as a weapon in the fight for truth should not be unduly hindered. And in many cases the court is assisted in fact by observance of what is misleadingly called the demeanour of the witnesses upon which the taking of video evidence may impact. Those observations of Spender J were cited with approval by a Full Court of this Court in Odhiambo v Minister for Immigration & Multicultural Affairs [2002] FCAFC 194 ; (2002) 122 FCR 29 at [97] . | OBJ |
Case162 | considered | Sunstate Airlines (Qld) Pty Ltd v First Chicago Australia Securities Ltd (unreported, NSWSC, 11 March 1997) | ACCC then made the following submissions as to the general principles against which the motion should be determined: (1) The power to make the direction is conferred by s 47A(1) of the Act. That subsection provides: The Court or a Judge may, for the purpose of any proceeding, direct or allow testimony to be given by videolink, audiolink or other appropriate means. (2) Section 47C provides: (1) The Court or a Judge must not exercise the power conferred by subsection 47A(1) or section 47B in relation to a video link unless the Court or the Judge is satisfied that the following conditions are met in relation to the video link: ... (b) the place at which the remote person is located is equipped with facilities (for example, television monitors) that enable all eligible persons present in that place to see and hear each eligible person who is present in the courtroom or other place where the Court or the Judge is sitting; ... (6) For the purposes of the application of this section to a particular proceeding, eligible persons are such persons as the Court or a Judge considers should be treated as eligible persons for the purposes of that proceeding. (Emphasis in original) (3) The discretion in s 47A is to be exercised judicially. (4) It is to be exercised recognising 'that there are deficiencies when evidence is taken by videolink when compared with evidence given viva voce' per Spender J in Australian Competition and Consumer Commission v World Netsafe (No. 1) [2002] FCA 526 ; (2002) 119 FCR 303 at 305. His Honour continued by quoting from Giles CJ of the Commercial Division of the Supreme Court of New South Wales, in Sunstate Airlines (Qld) Pty Ltd v First Chicago Australia Securities Ltd (unreported, NSWSC, 11 March 1997) at [4]: Cross-examination may be more difficult when video evidence is taken because documents have to be transmitted or produced in an unfamiliar manner, because of the delay in voice transmission, or for other reasons and the effectiveness of cross-examination as a weapon in the fight for truth should not be unduly hindered. And in many cases the court is assisted in fact by observance of what is misleadingly called the demeanour of the witnesses upon which the taking of video evidence may impact. Those observations of Spender J were cited with approval by a Full Court of this Court in Odhiambo v Minister for Immigration & Multicultural Affairs [2002] FCAFC 194 ; (2002) 122 FCR 29 at [97] . I agree with these observations. They illustrate the point that the choice in every case cannot be determined solely by reference to general principles because it is the application of those principles to the facts and circumstances of the particular case which must determine the choice; in the circumstances of a particular case, a matter may point one way and in another case it may point another way. At the end of the day, the exercise of the discretion as to what is appropriate in a particular case will involve a balancing exercise as to what will best serve the administration of justice consistently with maintaining justice between the parties: see Giles CJ in Sunstate Airlines at [4]. The Present Case In the present case, I have come to the conclusion that I should decline to make the direction for the following primary reasons: (1) There is no evidence before me that the Cooling Off Witnesses are not prepared to come to Sydney for the hearing or, through illness or otherwise, are unable to come. I accept that they are not compellable, but 9 of the 12 are still employees of StoresOnline and as StoresOnline will be bearing the cost of all travel and accommodation for all Cooling Off Witnesses, there is no financial disincentive for them in coming. References to their losing commission income while travelling and during their short stay here carries little weight, if any, particularly as it could no doubt be adjusted in their favour, by StoresOnline treating it as a 'one week off', in the 'two weeks on'/'one week off' arrangement for Sales Staff deposed to by Mr Klotz. (2) In my view, the overall savings in cost, by taking the evidence of the Cooling Off Witnesses by video-link rather than having them come here to give their evidence viva voce , will be at best marginal and at worst more expensive. The savings deposed to by Mr Klotz are, in the scheme of things, not significant and do not take into account all the costs associated with and all the costs which will arise as a result of, recourse to a video-link. It will, as submitted by the ACCC, require the ACCC to have an agent or agents at the remote location or locations to assist in the identification of documents during the course of cross-examination; it will undoubtedly lengthen the time it takes to complete the cross-examination of the Cooling Off Witnesses each day will at best be a half day due to time zone differences with attendant increase in the costs incurred for the additional time of counsel and instructing solicitors; and it would be common ground that these latter costs would quickly absorb and overtake any savings as between travel and accommodation costs on the one hand and the direct cost of utilising videoconference facilities on the other. (3) Clearly there are issues of credit involved as between the evidence in chief embodied in the affidavits of the Cooling Off Witnesses and the evidence in chief embodied in the affidavits of the ACCC's witnesses who purchased StoresOnline packages at the relevant Workshops in Australia going to the factual issue of whether or not the purchasers of such packages were told, at any time up to and including the point of sale, about the 'cooling off period'. In my view, it is in the interests of maintenance of justice between the parties that that evidence, from both sides, be given in person. (4) It is also clear that the cross-examination of the Cooling Off Witnesses will go beyond their evidence in relation to the 'cooling off period' issue. They will also be cross-examined in relation to other allegations of breaches contained in the statement of claim, as well as on the systems and procedures in place with a view to ensuring compliance with the Undertaking. So understood, their evidence is, contrary to the submission of StoresOnline, centrally important to the outcome of the case. (5) The anticipated size of the Court Book suggests that the Cooling Off Witnesses will be taken to a large number of documents in the course of their cross-examination. I accept that the management of such a task can be effectively handled whilst utilising videoconference facilities albeit, as mentioned above, at an additional significant cost. At one level then, this consideration is central. But where, as here, issues of credit are involved, it impels a conclusion in favour of the evidence being given in person. There are other matters which I have weighed into the balancing exercise in reaching the conclusion I have, in addition to the primary matters referred to in [15] above. On their own, they are not critical. However, as part of the balancing exercise they are, in my view, relevant; for example, the Cooling Off Witnesses are all people who regularly travel, both domestically and internationally, for or on behalf of StoresOnline. While having them travel from the United States to Australia and return will involve them in some 15 hours of travel each way within a relatively short timeframe, this is something to which they are accustomed in the course of their duties. It could not be seen as imposing on them an unusual personal or physical burden. The motion must be dismissed with costs. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds. Associate: Dated: 6 July 2009 Counsel for the Applicant: Mr S White SC with Mr T Brennan Solicitor for the Applicant: Corrs Chambers Westgarth Counsel for the Respondents: Mr D Fagan SC with Mr E Hyde Solicitor for the Respondents: Deacons Date of Hearing: 24 June 2009 Date of Judgment: 6 July 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/717.html | OBJ |
Case163 | applied | Bell Wholesale Co Pty Ltd v Gates Export Corporation (1984) 2 FCR 1 | No stay is sought if the first and third applicants fail to provide the security. Rather, if I were to order that security be provided, the applicants contend that the notice of motion should be adjourned to the day after the security is required to be provided, or later in the day upon which the security is required to allow the respondents to make further submissions regarding any further orders, which may be appropriate if that security is not provided. SUBMISSIONS OF THE APPLICANTS 8 In response, Mr Perry on behalf of the applicants has submitted, in essence: 1. Neither the first nor the third applicant has sufficient assets to meet any potential costs order, nor are they able to satisfy any order for security for costs. Accordingly the threshold for the making of an order has been established consistently with the decision of the Full Court in these proceedings. 2. However the question before the Court is whether the Court should exercise its discretion in this matter, and the key issue in relation to the exercise of discretion is the delay in serving the notice of motion for the security for costs on the applicants. In particular: (a) the notice was served on Friday 3 November 2006, and no notice had been given previously as to an intention to bring such an application (b) the impact of the delay is to be considered in a relative way, that is by considering its potential impact upon the hearing itself (c) if an order is to be made it cannot be satisfied by 4.00 pm Friday 10 November 2006 (d) notwithstanding that the motion does not seek a stay, it would be an extraordinary result for security to be ordered without there being some consequence attached to a failure to provide it (e) if a more realistic timeframe is given for the provision of security, the trial ought not to commence until the expiry of that time. SECURITY FOR COSTS 9 The Court has discretion under s 56 of Federal Court of Australia Act 1976 (Cth) to order an applicant to a proceeding to give security for costs, and, if security or further security is not given in accordance with an order under this section, the Court may order that the proceeding be dismissed (s 56(4)). As pointed out by the Full Court in Bell Wholesale Co Pty Ltd v Gates Export Corporation (1984) 2 FCR 1 the discretion to make orders under s 56 must be exercised judicially, but that is the only relevant limitation (at 3). Although O 28 r 3 sets out matters the Court may take into account in considering an application for security for costs, this is not an exhaustive statement of the cases in which an order for security for costs can be made ( Bell Wholesale at 3). THE CASE BEFORE ME 10 In my view in the case before me, relevant factors to take into consideration are as follows: 1. The fact that the Full Court on 1 June 2006 has previously ordered the applicants to pay security for costs in this matter, following broad agreement that the amount of $150 000 would be appropriate security for the costs of the respondent parties to the primary proceeding at the end of the first day of the trial ( Sunstate Orchards Pty Ltd v Citrus Queensland Pty Ltd [2006] FCAFC 93 at [5] ). 2. I note the submissions of Mr McQuade that there is no evidence that the security would frustrate the litigation or that those who stand behind the companies and who stand to benefit from litigation are also without means. In Bell Wholesale , the Full Court emphasised that it is for the party against whom security is sought to show the impecuniosity of those who stand behind the company or who will benefit from litigation. Although Mr Perry submitted that it would not be possible for the second applicant, who presumably will be funding the security for costs, to satisfy an order by tomorrow afternoon, there is no indication that the second applicant is impecunious or would be unable at all to satisfy an order by a later date. However: 3. The amount sought by way of security is substantial, namely $87 832, which, if I make the orders sought by the respondents, would need to be paid by tomorrow afternoon. This is a substantial sum to be raised and paid on such short notice. 4. The notice of motion has been filed in extreme proximity to the commencement of the trial without explanation. Indeed, the notice of motion was filed last Friday, mentioned on Monday and heard today in respect of an application for security for costs to be paid by tomorrow before a trial commences on Monday next. The fact that I can make reference to these days without dates illustrates the extreme tightness of the timing in the case before me. I note a similar matter which came before Toohey J in James v Australia and New Zealand Banking Group Ltd (1985) 9 FCR 442 when an application for security for costs was made one month before the commencement of the trial. His Honour said in that case: 'It is well established that an application for security for costs should be made promptly... The matter is now so close to a hearing and so much time and costs have been expended that it would be a grave injustice to the applicants if they were ordered to provide security for costs when it is apparent that they cannot comply with such an order.' (at 446) 5. The November trial date of this matter has been known by all parties since late July 2006. At the directions hearing of 28 July 2006 I indicated to the parties the importance of compliance with Court directions in this matter and the need to be prepared for trial in November. As pointed out recently by Jessup J in Acohs Pty L Ltd v Ucorp Pty Ltd & Ors [2006] FCA 1279 at [61] - [63] , citing authorities including Buckley v Bennell Design and Constructions Pty Ltd (1974) 1 ACLR 301 at 308, it is an accepted principle in the ordering of security for costs that such an application should be made promptly. Although I know that the respondents did not file an application for security for costs until after it was clear that a mediated settlement of this matter would not take place, the success or otherwise of the mediation would not have prevented the respondents applying at an earlier date for security for costs of the trial, particularly if payment was sought to be made after the date by which medication was ordered to take place. While I note that the respondents had earlier sought and obtained an order for security for pre-trial costs, no satisfactory explanation has been provided as to why an application for security for trial costs has been brought on what is, in effect, the eve of the trial. 6. There have already been other significant delays in this matter in such respects as the hearing of the trial itself (adjourned from July 2006 to November 2006) and mediation of the matter (orders for which were made on 9 August 2006 for the mediation to take place by no later than 20 October 2006, but which did not occur until 2 November 2006). Obviously, as pointed out by the High Court in State of Queensland v JL Holdings Pty Ltd [1997] HCA 1 ; (1997) 189 CLR 146, issues of case management do not take precedence over issues of justice. However, the fact that this case has already been characterised by significant delays is undesirable from the perspective of the parties and the Court, and there is an obvious risk that an order for security for costs which proves unrealistic for the applicants to comply with would delay the trial even further. 7. The respondents have sought no consequences as part of an order such as a stay in the event that security for costs are not paid before the commencement of the trial. As observed by Toohey J in James : 'Despite the submission of counsel for the first respondent, an order by way of security without a corresponding stay would be, in reality, no order at all, for no sanction would attach to non-compliance.' (at 446) 8. Although I said earlier in this judgment there is no evidence that the security would frustrate the litigation or that those who stand behind the companies and who stand to benefit from litigation are also without means, in cases where similar submissions have been successful (for example in Checked-Out Pty Ltd v Eagle Eye Inspections Pty Ltd [2001] FCA 1475 at [26] ) there were also no clear issues of delay or proximity to the hearing date as there are in this case. The issue here is not that there is a suggestion of impecuniosity of the second applicant, it is whether the delay in bringing the application for security for costs and the proximity of this application to the trial date militate against the exercise of my discretion to grant an order for security for costs in this case. 11 In my view, notwithstanding that the applicants have been ordered at an earlier date to pay security for pre-trial costs, the delays and the proximity to the hearing date of this application for trial costs in my view weigh against the exercise of a discretion in favour of the respondents in relation to this notice of motion. | OBJ |
Case164 | followed | Buckley v Bennell Design and Constructions Pty Ltd (1974) 1 ACLR 301 | No stay is sought if the first and third applicants fail to provide the security. Rather, if I were to order that security be provided, the applicants contend that the notice of motion should be adjourned to the day after the security is required to be provided, or later in the day upon which the security is required to allow the respondents to make further submissions regarding any further orders, which may be appropriate if that security is not provided. SUBMISSIONS OF THE APPLICANTS 8 In response, Mr Perry on behalf of the applicants has submitted, in essence: 1. Neither the first nor the third applicant has sufficient assets to meet any potential costs order, nor are they able to satisfy any order for security for costs. Accordingly the threshold for the making of an order has been established consistently with the decision of the Full Court in these proceedings. 2. However the question before the Court is whether the Court should exercise its discretion in this matter, and the key issue in relation to the exercise of discretion is the delay in serving the notice of motion for the security for costs on the applicants. In particular: (a) the notice was served on Friday 3 November 2006, and no notice had been given previously as to an intention to bring such an application (b) the impact of the delay is to be considered in a relative way, that is by considering its potential impact upon the hearing itself (c) if an order is to be made it cannot be satisfied by 4.00 pm Friday 10 November 2006 (d) notwithstanding that the motion does not seek a stay, it would be an extraordinary result for security to be ordered without there being some consequence attached to a failure to provide it (e) if a more realistic timeframe is given for the provision of security, the trial ought not to commence until the expiry of that time. SECURITY FOR COSTS 9 The Court has discretion under s 56 of Federal Court of Australia Act 1976 (Cth) to order an applicant to a proceeding to give security for costs, and, if security or further security is not given in accordance with an order under this section, the Court may order that the proceeding be dismissed (s 56(4)). As pointed out by the Full Court in Bell Wholesale Co Pty Ltd v Gates Export Corporation (1984) 2 FCR 1 the discretion to make orders under s 56 must be exercised judicially, but that is the only relevant limitation (at 3). Although O 28 r 3 sets out matters the Court may take into account in considering an application for security for costs, this is not an exhaustive statement of the cases in which an order for security for costs can be made ( Bell Wholesale at 3). THE CASE BEFORE ME 10 In my view in the case before me, relevant factors to take into consideration are as follows: 1. The fact that the Full Court on 1 June 2006 has previously ordered the applicants to pay security for costs in this matter, following broad agreement that the amount of $150 000 would be appropriate security for the costs of the respondent parties to the primary proceeding at the end of the first day of the trial ( Sunstate Orchards Pty Ltd v Citrus Queensland Pty Ltd [2006] FCAFC 93 at [5] ). 2. I note the submissions of Mr McQuade that there is no evidence that the security would frustrate the litigation or that those who stand behind the companies and who stand to benefit from litigation are also without means. In Bell Wholesale , the Full Court emphasised that it is for the party against whom security is sought to show the impecuniosity of those who stand behind the company or who will benefit from litigation. Although Mr Perry submitted that it would not be possible for the second applicant, who presumably will be funding the security for costs, to satisfy an order by tomorrow afternoon, there is no indication that the second applicant is impecunious or would be unable at all to satisfy an order by a later date. However: 3. The amount sought by way of security is substantial, namely $87 832, which, if I make the orders sought by the respondents, would need to be paid by tomorrow afternoon. This is a substantial sum to be raised and paid on such short notice. 4. The notice of motion has been filed in extreme proximity to the commencement of the trial without explanation. Indeed, the notice of motion was filed last Friday, mentioned on Monday and heard today in respect of an application for security for costs to be paid by tomorrow before a trial commences on Monday next. The fact that I can make reference to these days without dates illustrates the extreme tightness of the timing in the case before me. I note a similar matter which came before Toohey J in James v Australia and New Zealand Banking Group Ltd (1985) 9 FCR 442 when an application for security for costs was made one month before the commencement of the trial. His Honour said in that case: 'It is well established that an application for security for costs should be made promptly... The matter is now so close to a hearing and so much time and costs have been expended that it would be a grave injustice to the applicants if they were ordered to provide security for costs when it is apparent that they cannot comply with such an order.' (at 446) 5. The November trial date of this matter has been known by all parties since late July 2006. At the directions hearing of 28 July 2006 I indicated to the parties the importance of compliance with Court directions in this matter and the need to be prepared for trial in November. As pointed out recently by Jessup J in Acohs Pty L Ltd v Ucorp Pty Ltd & Ors [2006] FCA 1279 at [61] - [63] , citing authorities including Buckley v Bennell Design and Constructions Pty Ltd (1974) 1 ACLR 301 at 308, it is an accepted principle in the ordering of security for costs that such an application should be made promptly. Although I know that the respondents did not file an application for security for costs until after it was clear that a mediated settlement of this matter would not take place, the success or otherwise of the mediation would not have prevented the respondents applying at an earlier date for security for costs of the trial, particularly if payment was sought to be made after the date by which medication was ordered to take place. While I note that the respondents had earlier sought and obtained an order for security for pre-trial costs, no satisfactory explanation has been provided as to why an application for security for trial costs has been brought on what is, in effect, the eve of the trial. 6. There have already been other significant delays in this matter in such respects as the hearing of the trial itself (adjourned from July 2006 to November 2006) and mediation of the matter (orders for which were made on 9 August 2006 for the mediation to take place by no later than 20 October 2006, but which did not occur until 2 November 2006). Obviously, as pointed out by the High Court in State of Queensland v JL Holdings Pty Ltd [1997] HCA 1 ; (1997) 189 CLR 146, issues of case management do not take precedence over issues of justice. However, the fact that this case has already been characterised by significant delays is undesirable from the perspective of the parties and the Court, and there is an obvious risk that an order for security for costs which proves unrealistic for the applicants to comply with would delay the trial even further. 7. The respondents have sought no consequences as part of an order such as a stay in the event that security for costs are not paid before the commencement of the trial. As observed by Toohey J in James : 'Despite the submission of counsel for the first respondent, an order by way of security without a corresponding stay would be, in reality, no order at all, for no sanction would attach to non-compliance.' (at 446) 8. Although I said earlier in this judgment there is no evidence that the security would frustrate the litigation or that those who stand behind the companies and who stand to benefit from litigation are also without means, in cases where similar submissions have been successful (for example in Checked-Out Pty Ltd v Eagle Eye Inspections Pty Ltd [2001] FCA 1475 at [26] ) there were also no clear issues of delay or proximity to the hearing date as there are in this case. The issue here is not that there is a suggestion of impecuniosity of the second applicant, it is whether the delay in bringing the application for security for costs and the proximity of this application to the trial date militate against the exercise of my discretion to grant an order for security for costs in this case. 11 In my view, notwithstanding that the applicants have been ordered at an earlier date to pay security for pre-trial costs, the delays and the proximity to the hearing date of this application for trial costs in my view weigh against the exercise of a discretion in favour of the respondents in relation to this notice of motion. | OBJ |
Case165 | distinguished | Checked-Out Pty Ltd v Eagle Eye Inspections Pty Ltd [2001] FCA 1475 | No stay is sought if the first and third applicants fail to provide the security. Rather, if I were to order that security be provided, the applicants contend that the notice of motion should be adjourned to the day after the security is required to be provided, or later in the day upon which the security is required to allow the respondents to make further submissions regarding any further orders, which may be appropriate if that security is not provided. SUBMISSIONS OF THE APPLICANTS 8 In response, Mr Perry on behalf of the applicants has submitted, in essence: 1. Neither the first nor the third applicant has sufficient assets to meet any potential costs order, nor are they able to satisfy any order for security for costs. Accordingly the threshold for the making of an order has been established consistently with the decision of the Full Court in these proceedings. 2. However the question before the Court is whether the Court should exercise its discretion in this matter, and the key issue in relation to the exercise of discretion is the delay in serving the notice of motion for the security for costs on the applicants. In particular: (a) the notice was served on Friday 3 November 2006, and no notice had been given previously as to an intention to bring such an application (b) the impact of the delay is to be considered in a relative way, that is by considering its potential impact upon the hearing itself (c) if an order is to be made it cannot be satisfied by 4.00 pm Friday 10 November 2006 (d) notwithstanding that the motion does not seek a stay, it would be an extraordinary result for security to be ordered without there being some consequence attached to a failure to provide it (e) if a more realistic timeframe is given for the provision of security, the trial ought not to commence until the expiry of that time. SECURITY FOR COSTS 9 The Court has discretion under s 56 of Federal Court of Australia Act 1976 (Cth) to order an applicant to a proceeding to give security for costs, and, if security or further security is not given in accordance with an order under this section, the Court may order that the proceeding be dismissed (s 56(4)). As pointed out by the Full Court in Bell Wholesale Co Pty Ltd v Gates Export Corporation (1984) 2 FCR 1 the discretion to make orders under s 56 must be exercised judicially, but that is the only relevant limitation (at 3). Although O 28 r 3 sets out matters the Court may take into account in considering an application for security for costs, this is not an exhaustive statement of the cases in which an order for security for costs can be made ( Bell Wholesale at 3). THE CASE BEFORE ME 10 In my view in the case before me, relevant factors to take into consideration are as follows: 1. The fact that the Full Court on 1 June 2006 has previously ordered the applicants to pay security for costs in this matter, following broad agreement that the amount of $150 000 would be appropriate security for the costs of the respondent parties to the primary proceeding at the end of the first day of the trial ( Sunstate Orchards Pty Ltd v Citrus Queensland Pty Ltd [2006] FCAFC 93 at [5] ). 2. I note the submissions of Mr McQuade that there is no evidence that the security would frustrate the litigation or that those who stand behind the companies and who stand to benefit from litigation are also without means. In Bell Wholesale , the Full Court emphasised that it is for the party against whom security is sought to show the impecuniosity of those who stand behind the company or who will benefit from litigation. Although Mr Perry submitted that it would not be possible for the second applicant, who presumably will be funding the security for costs, to satisfy an order by tomorrow afternoon, there is no indication that the second applicant is impecunious or would be unable at all to satisfy an order by a later date. However: 3. The amount sought by way of security is substantial, namely $87 832, which, if I make the orders sought by the respondents, would need to be paid by tomorrow afternoon. This is a substantial sum to be raised and paid on such short notice. 4. The notice of motion has been filed in extreme proximity to the commencement of the trial without explanation. Indeed, the notice of motion was filed last Friday, mentioned on Monday and heard today in respect of an application for security for costs to be paid by tomorrow before a trial commences on Monday next. The fact that I can make reference to these days without dates illustrates the extreme tightness of the timing in the case before me. I note a similar matter which came before Toohey J in James v Australia and New Zealand Banking Group Ltd (1985) 9 FCR 442 when an application for security for costs was made one month before the commencement of the trial. His Honour said in that case: 'It is well established that an application for security for costs should be made promptly... The matter is now so close to a hearing and so much time and costs have been expended that it would be a grave injustice to the applicants if they were ordered to provide security for costs when it is apparent that they cannot comply with such an order.' (at 446) 5. The November trial date of this matter has been known by all parties since late July 2006. At the directions hearing of 28 July 2006 I indicated to the parties the importance of compliance with Court directions in this matter and the need to be prepared for trial in November. As pointed out recently by Jessup J in Acohs Pty L Ltd v Ucorp Pty Ltd & Ors [2006] FCA 1279 at [61] - [63] , citing authorities including Buckley v Bennell Design and Constructions Pty Ltd (1974) 1 ACLR 301 at 308, it is an accepted principle in the ordering of security for costs that such an application should be made promptly. Although I know that the respondents did not file an application for security for costs until after it was clear that a mediated settlement of this matter would not take place, the success or otherwise of the mediation would not have prevented the respondents applying at an earlier date for security for costs of the trial, particularly if payment was sought to be made after the date by which medication was ordered to take place. While I note that the respondents had earlier sought and obtained an order for security for pre-trial costs, no satisfactory explanation has been provided as to why an application for security for trial costs has been brought on what is, in effect, the eve of the trial. 6. There have already been other significant delays in this matter in such respects as the hearing of the trial itself (adjourned from July 2006 to November 2006) and mediation of the matter (orders for which were made on 9 August 2006 for the mediation to take place by no later than 20 October 2006, but which did not occur until 2 November 2006). Obviously, as pointed out by the High Court in State of Queensland v JL Holdings Pty Ltd [1997] HCA 1 ; (1997) 189 CLR 146, issues of case management do not take precedence over issues of justice. However, the fact that this case has already been characterised by significant delays is undesirable from the perspective of the parties and the Court, and there is an obvious risk that an order for security for costs which proves unrealistic for the applicants to comply with would delay the trial even further. 7. The respondents have sought no consequences as part of an order such as a stay in the event that security for costs are not paid before the commencement of the trial. As observed by Toohey J in James : 'Despite the submission of counsel for the first respondent, an order by way of security without a corresponding stay would be, in reality, no order at all, for no sanction would attach to non-compliance.' (at 446) 8. Although I said earlier in this judgment there is no evidence that the security would frustrate the litigation or that those who stand behind the companies and who stand to benefit from litigation are also without means, in cases where similar submissions have been successful (for example in Checked-Out Pty Ltd v Eagle Eye Inspections Pty Ltd [2001] FCA 1475 at [26] ) there were also no clear issues of delay or proximity to the hearing date as there are in this case. The issue here is not that there is a suggestion of impecuniosity of the second applicant, it is whether the delay in bringing the application for security for costs and the proximity of this application to the trial date militate against the exercise of my discretion to grant an order for security for costs in this case. 11 In my view, notwithstanding that the applicants have been ordered at an earlier date to pay security for pre-trial costs, the delays and the proximity to the hearing date of this application for trial costs in my view weigh against the exercise of a discretion in favour of the respondents in relation to this notice of motion. | OBJ |
Case166 | followed | James v Australia and New Zealand Banking Group Ltd (1985) 9 FCR 442 | No stay is sought if the first and third applicants fail to provide the security. Rather, if I were to order that security be provided, the applicants contend that the notice of motion should be adjourned to the day after the security is required to be provided, or later in the day upon which the security is required to allow the respondents to make further submissions regarding any further orders, which may be appropriate if that security is not provided. SUBMISSIONS OF THE APPLICANTS 8 In response, Mr Perry on behalf of the applicants has submitted, in essence: 1. Neither the first nor the third applicant has sufficient assets to meet any potential costs order, nor are they able to satisfy any order for security for costs. Accordingly the threshold for the making of an order has been established consistently with the decision of the Full Court in these proceedings. 2. However the question before the Court is whether the Court should exercise its discretion in this matter, and the key issue in relation to the exercise of discretion is the delay in serving the notice of motion for the security for costs on the applicants. In particular: (a) the notice was served on Friday 3 November 2006, and no notice had been given previously as to an intention to bring such an application (b) the impact of the delay is to be considered in a relative way, that is by considering its potential impact upon the hearing itself (c) if an order is to be made it cannot be satisfied by 4.00 pm Friday 10 November 2006 (d) notwithstanding that the motion does not seek a stay, it would be an extraordinary result for security to be ordered without there being some consequence attached to a failure to provide it (e) if a more realistic timeframe is given for the provision of security, the trial ought not to commence until the expiry of that time. SECURITY FOR COSTS 9 The Court has discretion under s 56 of Federal Court of Australia Act 1976 (Cth) to order an applicant to a proceeding to give security for costs, and, if security or further security is not given in accordance with an order under this section, the Court may order that the proceeding be dismissed (s 56(4)). As pointed out by the Full Court in Bell Wholesale Co Pty Ltd v Gates Export Corporation (1984) 2 FCR 1 the discretion to make orders under s 56 must be exercised judicially, but that is the only relevant limitation (at 3). Although O 28 r 3 sets out matters the Court may take into account in considering an application for security for costs, this is not an exhaustive statement of the cases in which an order for security for costs can be made ( Bell Wholesale at 3). THE CASE BEFORE ME 10 In my view in the case before me, relevant factors to take into consideration are as follows: 1. The fact that the Full Court on 1 June 2006 has previously ordered the applicants to pay security for costs in this matter, following broad agreement that the amount of $150 000 would be appropriate security for the costs of the respondent parties to the primary proceeding at the end of the first day of the trial ( Sunstate Orchards Pty Ltd v Citrus Queensland Pty Ltd [2006] FCAFC 93 at [5] ). 2. I note the submissions of Mr McQuade that there is no evidence that the security would frustrate the litigation or that those who stand behind the companies and who stand to benefit from litigation are also without means. In Bell Wholesale , the Full Court emphasised that it is for the party against whom security is sought to show the impecuniosity of those who stand behind the company or who will benefit from litigation. Although Mr Perry submitted that it would not be possible for the second applicant, who presumably will be funding the security for costs, to satisfy an order by tomorrow afternoon, there is no indication that the second applicant is impecunious or would be unable at all to satisfy an order by a later date. However: 3. The amount sought by way of security is substantial, namely $87 832, which, if I make the orders sought by the respondents, would need to be paid by tomorrow afternoon. This is a substantial sum to be raised and paid on such short notice. 4. The notice of motion has been filed in extreme proximity to the commencement of the trial without explanation. Indeed, the notice of motion was filed last Friday, mentioned on Monday and heard today in respect of an application for security for costs to be paid by tomorrow before a trial commences on Monday next. The fact that I can make reference to these days without dates illustrates the extreme tightness of the timing in the case before me. I note a similar matter which came before Toohey J in James v Australia and New Zealand Banking Group Ltd (1985) 9 FCR 442 when an application for security for costs was made one month before the commencement of the trial. His Honour said in that case: 'It is well established that an application for security for costs should be made promptly... The matter is now so close to a hearing and so much time and costs have been expended that it would be a grave injustice to the applicants if they were ordered to provide security for costs when it is apparent that they cannot comply with such an order.' (at 446) 5. The November trial date of this matter has been known by all parties since late July 2006. At the directions hearing of 28 July 2006 I indicated to the parties the importance of compliance with Court directions in this matter and the need to be prepared for trial in November. As pointed out recently by Jessup J in Acohs Pty L Ltd v Ucorp Pty Ltd & Ors [2006] FCA 1279 at [61] - [63] , citing authorities including Buckley v Bennell Design and Constructions Pty Ltd (1974) 1 ACLR 301 at 308, it is an accepted principle in the ordering of security for costs that such an application should be made promptly. Although I know that the respondents did not file an application for security for costs until after it was clear that a mediated settlement of this matter would not take place, the success or otherwise of the mediation would not have prevented the respondents applying at an earlier date for security for costs of the trial, particularly if payment was sought to be made after the date by which medication was ordered to take place. While I note that the respondents had earlier sought and obtained an order for security for pre-trial costs, no satisfactory explanation has been provided as to why an application for security for trial costs has been brought on what is, in effect, the eve of the trial. 6. There have already been other significant delays in this matter in such respects as the hearing of the trial itself (adjourned from July 2006 to November 2006) and mediation of the matter (orders for which were made on 9 August 2006 for the mediation to take place by no later than 20 October 2006, but which did not occur until 2 November 2006). Obviously, as pointed out by the High Court in State of Queensland v JL Holdings Pty Ltd [1997] HCA 1 ; (1997) 189 CLR 146, issues of case management do not take precedence over issues of justice. However, the fact that this case has already been characterised by significant delays is undesirable from the perspective of the parties and the Court, and there is an obvious risk that an order for security for costs which proves unrealistic for the applicants to comply with would delay the trial even further. 7. The respondents have sought no consequences as part of an order such as a stay in the event that security for costs are not paid before the commencement of the trial. As observed by Toohey J in James : 'Despite the submission of counsel for the first respondent, an order by way of security without a corresponding stay would be, in reality, no order at all, for no sanction would attach to non-compliance.' (at 446) 8. Although I said earlier in this judgment there is no evidence that the security would frustrate the litigation or that those who stand behind the companies and who stand to benefit from litigation are also without means, in cases where similar submissions have been successful (for example in Checked-Out Pty Ltd v Eagle Eye Inspections Pty Ltd [2001] FCA 1475 at [26] ) there were also no clear issues of delay or proximity to the hearing date as there are in this case. The issue here is not that there is a suggestion of impecuniosity of the second applicant, it is whether the delay in bringing the application for security for costs and the proximity of this application to the trial date militate against the exercise of my discretion to grant an order for security for costs in this case. 11 In my view, notwithstanding that the applicants have been ordered at an earlier date to pay security for pre-trial costs, the delays and the proximity to the hearing date of this application for trial costs in my view weigh against the exercise of a discretion in favour of the respondents in relation to this notice of motion. | OBJ |
Case167 | cited | State of Queensland v JL Holdings Pty Ltd [1997] HCA 1 ; (1997) 189 CLR 146 | No stay is sought if the first and third applicants fail to provide the security. Rather, if I were to order that security be provided, the applicants contend that the notice of motion should be adjourned to the day after the security is required to be provided, or later in the day upon which the security is required to allow the respondents to make further submissions regarding any further orders, which may be appropriate if that security is not provided. SUBMISSIONS OF THE APPLICANTS 8 In response, Mr Perry on behalf of the applicants has submitted, in essence: 1. Neither the first nor the third applicant has sufficient assets to meet any potential costs order, nor are they able to satisfy any order for security for costs. Accordingly the threshold for the making of an order has been established consistently with the decision of the Full Court in these proceedings. 2. However the question before the Court is whether the Court should exercise its discretion in this matter, and the key issue in relation to the exercise of discretion is the delay in serving the notice of motion for the security for costs on the applicants. In particular: (a) the notice was served on Friday 3 November 2006, and no notice had been given previously as to an intention to bring such an application (b) the impact of the delay is to be considered in a relative way, that is by considering its potential impact upon the hearing itself (c) if an order is to be made it cannot be satisfied by 4.00 pm Friday 10 November 2006 (d) notwithstanding that the motion does not seek a stay, it would be an extraordinary result for security to be ordered without there being some consequence attached to a failure to provide it (e) if a more realistic timeframe is given for the provision of security, the trial ought not to commence until the expiry of that time. SECURITY FOR COSTS 9 The Court has discretion under s 56 of Federal Court of Australia Act 1976 (Cth) to order an applicant to a proceeding to give security for costs, and, if security or further security is not given in accordance with an order under this section, the Court may order that the proceeding be dismissed (s 56(4)). As pointed out by the Full Court in Bell Wholesale Co Pty Ltd v Gates Export Corporation (1984) 2 FCR 1 the discretion to make orders under s 56 must be exercised judicially, but that is the only relevant limitation (at 3). Although O 28 r 3 sets out matters the Court may take into account in considering an application for security for costs, this is not an exhaustive statement of the cases in which an order for security for costs can be made ( Bell Wholesale at 3). THE CASE BEFORE ME 10 In my view in the case before me, relevant factors to take into consideration are as follows: 1. The fact that the Full Court on 1 June 2006 has previously ordered the applicants to pay security for costs in this matter, following broad agreement that the amount of $150 000 would be appropriate security for the costs of the respondent parties to the primary proceeding at the end of the first day of the trial ( Sunstate Orchards Pty Ltd v Citrus Queensland Pty Ltd [2006] FCAFC 93 at [5] ). 2. I note the submissions of Mr McQuade that there is no evidence that the security would frustrate the litigation or that those who stand behind the companies and who stand to benefit from litigation are also without means. In Bell Wholesale , the Full Court emphasised that it is for the party against whom security is sought to show the impecuniosity of those who stand behind the company or who will benefit from litigation. Although Mr Perry submitted that it would not be possible for the second applicant, who presumably will be funding the security for costs, to satisfy an order by tomorrow afternoon, there is no indication that the second applicant is impecunious or would be unable at all to satisfy an order by a later date. However: 3. The amount sought by way of security is substantial, namely $87 832, which, if I make the orders sought by the respondents, would need to be paid by tomorrow afternoon. This is a substantial sum to be raised and paid on such short notice. 4. The notice of motion has been filed in extreme proximity to the commencement of the trial without explanation. Indeed, the notice of motion was filed last Friday, mentioned on Monday and heard today in respect of an application for security for costs to be paid by tomorrow before a trial commences on Monday next. The fact that I can make reference to these days without dates illustrates the extreme tightness of the timing in the case before me. I note a similar matter which came before Toohey J in James v Australia and New Zealand Banking Group Ltd (1985) 9 FCR 442 when an application for security for costs was made one month before the commencement of the trial. His Honour said in that case: 'It is well established that an application for security for costs should be made promptly... The matter is now so close to a hearing and so much time and costs have been expended that it would be a grave injustice to the applicants if they were ordered to provide security for costs when it is apparent that they cannot comply with such an order.' (at 446) 5. The November trial date of this matter has been known by all parties since late July 2006. At the directions hearing of 28 July 2006 I indicated to the parties the importance of compliance with Court directions in this matter and the need to be prepared for trial in November. As pointed out recently by Jessup J in Acohs Pty L Ltd v Ucorp Pty Ltd & Ors [2006] FCA 1279 at [61] - [63] , citing authorities including Buckley v Bennell Design and Constructions Pty Ltd (1974) 1 ACLR 301 at 308, it is an accepted principle in the ordering of security for costs that such an application should be made promptly. Although I know that the respondents did not file an application for security for costs until after it was clear that a mediated settlement of this matter would not take place, the success or otherwise of the mediation would not have prevented the respondents applying at an earlier date for security for costs of the trial, particularly if payment was sought to be made after the date by which medication was ordered to take place. While I note that the respondents had earlier sought and obtained an order for security for pre-trial costs, no satisfactory explanation has been provided as to why an application for security for trial costs has been brought on what is, in effect, the eve of the trial. 6. There have already been other significant delays in this matter in such respects as the hearing of the trial itself (adjourned from July 2006 to November 2006) and mediation of the matter (orders for which were made on 9 August 2006 for the mediation to take place by no later than 20 October 2006, but which did not occur until 2 November 2006). Obviously, as pointed out by the High Court in State of Queensland v JL Holdings Pty Ltd [1997] HCA 1 ; (1997) 189 CLR 146, issues of case management do not take precedence over issues of justice. However, the fact that this case has already been characterised by significant delays is undesirable from the perspective of the parties and the Court, and there is an obvious risk that an order for security for costs which proves unrealistic for the applicants to comply with would delay the trial even further. 7. The respondents have sought no consequences as part of an order such as a stay in the event that security for costs are not paid before the commencement of the trial. As observed by Toohey J in James : 'Despite the submission of counsel for the first respondent, an order by way of security without a corresponding stay would be, in reality, no order at all, for no sanction would attach to non-compliance.' (at 446) 8. Although I said earlier in this judgment there is no evidence that the security would frustrate the litigation or that those who stand behind the companies and who stand to benefit from litigation are also without means, in cases where similar submissions have been successful (for example in Checked-Out Pty Ltd v Eagle Eye Inspections Pty Ltd [2001] FCA 1475 at [26] ) there were also no clear issues of delay or proximity to the hearing date as there are in this case. The issue here is not that there is a suggestion of impecuniosity of the second applicant, it is whether the delay in bringing the application for security for costs and the proximity of this application to the trial date militate against the exercise of my discretion to grant an order for security for costs in this case. 11 In my view, notwithstanding that the applicants have been ordered at an earlier date to pay security for pre-trial costs, the delays and the proximity to the hearing date of this application for trial costs in my view weigh against the exercise of a discretion in favour of the respondents in relation to this notice of motion. | OBJ |
Case168 | cited | Sunstate Orchards Pty Ltd v Citrus Queensland Pty Ltd [2006] FCAFC 93 | The current position is that the Full Court on Thursday 1 June 2006 ordered that the first and third applicant provide security for the costs of the first and second respondent of the proceeding up to the end of the first day of the trial in the amount of $150 000 by way of unconditional bank guarantee in that sum or otherwise to the satisfaction of the District Registrar of the Queensland District Registry of the Court: Sunstate Orchards Pty Ltd v Citrus Queensland Pty Ltd [2006] FCAFC 93. I understand that security for costs was provided on Thursday 22 June 2006. 6 For the purposes of this judgment, I shall assume that the costs order of the Full Court was exhausted on Monday 17 July 2006 which was the first day of the trial, subsequently adjourned. 7 In his written submissions supplemented by oral submissions this morning in Court, Mr McQuade for the respondents submitted in summary as follows: 1. The sum sought by way of security for costs is referrable to the estimate of Mr James McLellan in his affidavit sworn 23 March 2006 and filed 27 March 2006. 2. Otherwise, the respondents rely on submissions and material previously before this Court and the Full Court. 3. The financial position of the first and third applicants is unchanged from April 2006. 4. There is no evidence that security would frustrate litigation and no evidence that those who stand behind the companies and who stand to benefit from litigation are also without means. 5. The onus is on the first and second applicants to raise impecuniosity of those whom litigation would benefit and to prove the facts upon which a contention is founded. 6. The trial will take two weeks. The parties are proposing to call 15 witnesses. 7. The respondents have not adduced any evidence that would weigh against an order for security. 8. There is evidence that the second applicant had an expectation of obtaining further funds to provide by way of security for costs. 9. There has been no delay by the respondents as to the notice of motion for security for costs. It was filed the day following an unsuccessful mediation between the parties. 11. No stay is sought if the first and third applicants fail to provide the security. Rather, if I were to order that security be provided, the applicants contend that the notice of motion should be adjourned to the day after the security is required to be provided, or later in the day upon which the security is required to allow the respondents to make further submissions regarding any further orders, which may be appropriate if that security is not provided. SUBMISSIONS OF THE APPLICANTS 8 In response, Mr Perry on behalf of the applicants has submitted, in essence: 1. Neither the first nor the third applicant has sufficient assets to meet any potential costs order, nor are they able to satisfy any order for security for costs. Accordingly the threshold for the making of an order has been established consistently with the decision of the Full Court in these proceedings. 2. However the question before the Court is whether the Court should exercise its discretion in this matter, and the key issue in relation to the exercise of discretion is the delay in serving the notice of motion for the security for costs on the applicants. In particular: (a) the notice was served on Friday 3 November 2006, and no notice had been given previously as to an intention to bring such an application (b) the impact of the delay is to be considered in a relative way, that is by considering its potential impact upon the hearing itself (c) if an order is to be made it cannot be satisfied by 4.00 pm Friday 10 November 2006 (d) notwithstanding that the motion does not seek a stay, it would be an extraordinary result for security to be ordered without there being some consequence attached to a failure to provide it (e) if a more realistic timeframe is given for the provision of security, the trial ought not to commence until the expiry of that time. SECURITY FOR COSTS 9 The Court has discretion under s 56 of Federal Court of Australia Act 1976 (Cth) to order an applicant to a proceeding to give security for costs, and, if security or further security is not given in accordance with an order under this section, the Court may order that the proceeding be dismissed (s 56(4)). As pointed out by the Full Court in Bell Wholesale Co Pty Ltd v Gates Export Corporation (1984) 2 FCR 1 the discretion to make orders under s 56 must be exercised judicially, but that is the only relevant limitation (at 3). Although O 28 r 3 sets out matters the Court may take into account in considering an application for security for costs, this is not an exhaustive statement of the cases in which an order for security for costs can be made ( Bell Wholesale at 3). THE CASE BEFORE ME 10 In my view in the case before me, relevant factors to take into consideration are as follows: 1. The fact that the Full Court on 1 June 2006 has previously ordered the applicants to pay security for costs in this matter, following broad agreement that the amount of $150 000 would be appropriate security for the costs of the respondent parties to the primary proceeding at the end of the first day of the trial ( Sunstate Orchards Pty Ltd v Citrus Queensland Pty Ltd [2006] FCAFC 93 at [5] ). 2. I note the submissions of Mr McQuade that there is no evidence that the security would frustrate the litigation or that those who stand behind the companies and who stand to benefit from litigation are also without means. In Bell Wholesale , the Full Court emphasised that it is for the party against whom security is sought to show the impecuniosity of those who stand behind the company or who will benefit from litigation. Although Mr Perry submitted that it would not be possible for the second applicant, who presumably will be funding the security for costs, to satisfy an order by tomorrow afternoon, there is no indication that the second applicant is impecunious or would be unable at all to satisfy an order by a later date. However: 3. The amount sought by way of security is substantial, namely $87 832, which, if I make the orders sought by the respondents, would need to be paid by tomorrow afternoon. This is a substantial sum to be raised and paid on such short notice. 4. The notice of motion has been filed in extreme proximity to the commencement of the trial without explanation. Indeed, the notice of motion was filed last Friday, mentioned on Monday and heard today in respect of an application for security for costs to be paid by tomorrow before a trial commences on Monday next. The fact that I can make reference to these days without dates illustrates the extreme tightness of the timing in the case before me. I note a similar matter which came before Toohey J in James v Australia and New Zealand Banking Group Ltd (1985) 9 FCR 442 when an application for security for costs was made one month before the commencement of the trial. His Honour said in that case: 'It is well established that an application for security for costs should be made promptly... The matter is now so close to a hearing and so much time and costs have been expended that it would be a grave injustice to the applicants if they were ordered to provide security for costs when it is apparent that they cannot comply with such an order.' (at 446) 5. The November trial date of this matter has been known by all parties since late July 2006. At the directions hearing of 28 July 2006 I indicated to the parties the importance of compliance with Court directions in this matter and the need to be prepared for trial in November. As pointed out recently by Jessup J in Acohs Pty L Ltd v Ucorp Pty Ltd & Ors [2006] FCA 1279 at [61] - [63] , citing authorities including Buckley v Bennell Design and Constructions Pty Ltd (1974) 1 ACLR 301 at 308, it is an accepted principle in the ordering of security for costs that such an application should be made promptly. Although I know that the respondents did not file an application for security for costs until after it was clear that a mediated settlement of this matter would not take place, the success or otherwise of the mediation would not have prevented the respondents applying at an earlier date for security for costs of the trial, particularly if payment was sought to be made after the date by which medication was ordered to take place. While I note that the respondents had earlier sought and obtained an order for security for pre-trial costs, no satisfactory explanation has been provided as to why an application for security for trial costs has been brought on what is, in effect, the eve of the trial. 6. There have already been other significant delays in this matter in such respects as the hearing of the trial itself (adjourned from July 2006 to November 2006) and mediation of the matter (orders for which were made on 9 August 2006 for the mediation to take place by no later than 20 October 2006, but which did not occur until 2 November 2006). Obviously, as pointed out by the High Court in State of Queensland v JL Holdings Pty Ltd [1997] HCA 1 ; (1997) 189 CLR 146, issues of case management do not take precedence over issues of justice. However, the fact that this case has already been characterised by significant delays is undesirable from the perspective of the parties and the Court, and there is an obvious risk that an order for security for costs which proves unrealistic for the applicants to comply with would delay the trial even further. 7. The respondents have sought no consequences as part of an order such as a stay in the event that security for costs are not paid before the commencement of the trial. As observed by Toohey J in James : 'Despite the submission of counsel for the first respondent, an order by way of security without a corresponding stay would be, in reality, no order at all, for no sanction would attach to non-compliance.' (at 446) 8. Although I said earlier in this judgment there is no evidence that the security would frustrate the litigation or that those who stand behind the companies and who stand to benefit from litigation are also without means, in cases where similar submissions have been successful (for example in Checked-Out Pty Ltd v Eagle Eye Inspections Pty Ltd [2001] FCA 1475 at [26] ) there were also no clear issues of delay or proximity to the hearing date as there are in this case. The issue here is not that there is a suggestion of impecuniosity of the second applicant, it is whether the delay in bringing the application for security for costs and the proximity of this application to the trial date militate against the exercise of my discretion to grant an order for security for costs in this case. 11 In my view, notwithstanding that the applicants have been ordered at an earlier date to pay security for pre-trial costs, the delays and the proximity to the hearing date of this application for trial costs in my view weigh against the exercise of a discretion in favour of the respondents in relation to this notice of motion. | OBJ |
Case169 | followed | Acohs Pty Ltd v Ucorp Pty Ltd & Ors [2006] FCA 1279 | No stay is sought if the first and third applicants fail to provide the security. Rather, if I were to order that security be provided, the applicants contend that the notice of motion should be adjourned to the day after the security is required to be provided, or later in the day upon which the security is required to allow the respondents to make further submissions regarding any further orders, which may be appropriate if that security is not provided. SUBMISSIONS OF THE APPLICANTS 8 In response, Mr Perry on behalf of the applicants has submitted, in essence: 1. Neither the first nor the third applicant has sufficient assets to meet any potential costs order, nor are they able to satisfy any order for security for costs. Accordingly the threshold for the making of an order has been established consistently with the decision of the Full Court in these proceedings. 2. However the question before the Court is whether the Court should exercise its discretion in this matter, and the key issue in relation to the exercise of discretion is the delay in serving the notice of motion for the security for costs on the applicants. In particular: (a) the notice was served on Friday 3 November 2006, and no notice had been given previously as to an intention to bring such an application (b) the impact of the delay is to be considered in a relative way, that is by considering its potential impact upon the hearing itself (c) if an order is to be made it cannot be satisfied by 4.00 pm Friday 10 November 2006 (d) notwithstanding that the motion does not seek a stay, it would be an extraordinary result for security to be ordered without there being some consequence attached to a failure to provide it (e) if a more realistic timeframe is given for the provision of security, the trial ought not to commence until the expiry of that time. SECURITY FOR COSTS 9 The Court has discretion under s 56 of Federal Court of Australia Act 1976 (Cth) to order an applicant to a proceeding to give security for costs, and, if security or further security is not given in accordance with an order under this section, the Court may order that the proceeding be dismissed (s 56(4)). As pointed out by the Full Court in Bell Wholesale Co Pty Ltd v Gates Export Corporation (1984) 2 FCR 1 the discretion to make orders under s 56 must be exercised judicially, but that is the only relevant limitation (at 3). Although O 28 r 3 sets out matters the Court may take into account in considering an application for security for costs, this is not an exhaustive statement of the cases in which an order for security for costs can be made ( Bell Wholesale at 3). THE CASE BEFORE ME 10 In my view in the case before me, relevant factors to take into consideration are as follows: 1. The fact that the Full Court on 1 June 2006 has previously ordered the applicants to pay security for costs in this matter, following broad agreement that the amount of $150 000 would be appropriate security for the costs of the respondent parties to the primary proceeding at the end of the first day of the trial ( Sunstate Orchards Pty Ltd v Citrus Queensland Pty Ltd [2006] FCAFC 93 at [5] ). 2. I note the submissions of Mr McQuade that there is no evidence that the security would frustrate the litigation or that those who stand behind the companies and who stand to benefit from litigation are also without means. In Bell Wholesale , the Full Court emphasised that it is for the party against whom security is sought to show the impecuniosity of those who stand behind the company or who will benefit from litigation. Although Mr Perry submitted that it would not be possible for the second applicant, who presumably will be funding the security for costs, to satisfy an order by tomorrow afternoon, there is no indication that the second applicant is impecunious or would be unable at all to satisfy an order by a later date. However: 3. The amount sought by way of security is substantial, namely $87 832, which, if I make the orders sought by the respondents, would need to be paid by tomorrow afternoon. This is a substantial sum to be raised and paid on such short notice. 4. The notice of motion has been filed in extreme proximity to the commencement of the trial without explanation. Indeed, the notice of motion was filed last Friday, mentioned on Monday and heard today in respect of an application for security for costs to be paid by tomorrow before a trial commences on Monday next. The fact that I can make reference to these days without dates illustrates the extreme tightness of the timing in the case before me. I note a similar matter which came before Toohey J in James v Australia and New Zealand Banking Group Ltd (1985) 9 FCR 442 when an application for security for costs was made one month before the commencement of the trial. His Honour said in that case: 'It is well established that an application for security for costs should be made promptly... The matter is now so close to a hearing and so much time and costs have been expended that it would be a grave injustice to the applicants if they were ordered to provide security for costs when it is apparent that they cannot comply with such an order.' (at 446) 5. The November trial date of this matter has been known by all parties since late July 2006. At the directions hearing of 28 July 2006 I indicated to the parties the importance of compliance with Court directions in this matter and the need to be prepared for trial in November. As pointed out recently by Jessup J in Acohs Pty L Ltd v Ucorp Pty Ltd & Ors [2006] FCA 1279 at [61] - [63] , citing authorities including Buckley v Bennell Design and Constructions Pty Ltd (1974) 1 ACLR 301 at 308, it is an accepted principle in the ordering of security for costs that such an application should be made promptly. Although I know that the respondents did not file an application for security for costs until after it was clear that a mediated settlement of this matter would not take place, the success or otherwise of the mediation would not have prevented the respondents applying at an earlier date for security for costs of the trial, particularly if payment was sought to be made after the date by which medication was ordered to take place. While I note that the respondents had earlier sought and obtained an order for security for pre-trial costs, no satisfactory explanation has been provided as to why an application for security for trial costs has been brought on what is, in effect, the eve of the trial. 6. There have already been other significant delays in this matter in such respects as the hearing of the trial itself (adjourned from July 2006 to November 2006) and mediation of the matter (orders for which were made on 9 August 2006 for the mediation to take place by no later than 20 October 2006, but which did not occur until 2 November 2006). Obviously, as pointed out by the High Court in State of Queensland v JL Holdings Pty Ltd [1997] HCA 1 ; (1997) 189 CLR 146, issues of case management do not take precedence over issues of justice. However, the fact that this case has already been characterised by significant delays is undesirable from the perspective of the parties and the Court, and there is an obvious risk that an order for security for costs which proves unrealistic for the applicants to comply with would delay the trial even further. 7. The respondents have sought no consequences as part of an order such as a stay in the event that security for costs are not paid before the commencement of the trial. As observed by Toohey J in James : 'Despite the submission of counsel for the first respondent, an order by way of security without a corresponding stay would be, in reality, no order at all, for no sanction would attach to non-compliance.' (at 446) 8. Although I said earlier in this judgment there is no evidence that the security would frustrate the litigation or that those who stand behind the companies and who stand to benefit from litigation are also without means, in cases where similar submissions have been successful (for example in Checked-Out Pty Ltd v Eagle Eye Inspections Pty Ltd [2001] FCA 1475 at [26] ) there were also no clear issues of delay or proximity to the hearing date as there are in this case. The issue here is not that there is a suggestion of impecuniosity of the second applicant, it is whether the delay in bringing the application for security for costs and the proximity of this application to the trial date militate against the exercise of my discretion to grant an order for security for costs in this case. 11 In my view, notwithstanding that the applicants have been ordered at an earlier date to pay security for pre-trial costs, the delays and the proximity to the hearing date of this application for trial costs in my view weigh against the exercise of a discretion in favour of the respondents in relation to this notice of motion. | OBJ |
Case170 | applied | Brock v Minister for Home Affairs (2008) 170 FCR 434 | First, in my opinion, to relitigate the events of 27 March 2006 is an abuse of process and the pursuit of the claim for unlawful discrimination would involve a relitigation of the events of 27 March 2006. The Court has a wide jurisdiction to protect a party from an abuse of process constituted by an attempt to relitigate a case already disposed of: Walton v Gardiner [1993] HCA 77 ; (1993) 177 CLR 378 at 392-393 per Mason CJ, Deane and Dawson JJ. It seems clear on the authorities that a proceeding may constitute an abuse of process because it involves an attempt to relitigate a dispute already judicially determined even though none of the doctrines of res judicata , issue estoppel in the strict sense or an Anshun estoppel are made out: Coffey v Secretary, Department of Social Security [1999] FCA 375 ; (1999) 86 FCR 434 at 443 [25] ; Spalla v St George Motor Finance Ltd (No 6) [2004] FCA 1699 at [58] - [70] per French J; SZAJB v Minister for Immigration and Citizenship (2008) 168 FCR 410 at 423 [37]-[39] per French J (with whom Tracey J agreed at 437 [114]); Brock v Minister for Home Affairs (2008) 170 FCR 434 at 447 [74] per Lindgren and Tracey JJ. The claim for unlawful discrimination represents an attempt to relitigate the events of 27 March 2006 and is an abuse of process. I am mindful of the fact that, as events transpired, the claim for unlawful discrimination could not have been brought in the earlier proceeding, but that does not dissuade me from reaching the conclusion that I have expressed. The fact is that it was the applicant who decided to institute the earlier proceeding the day after the relevant events, to lodge his complaint with the Commission about three weeks after the relevant events, and to wait until 14 July 2006 before advising the Court that he had lodged a complaint with the Commission. | OBJ |
Case171 | referred to | Commonwealth Bank of Australia v Taylor [2008] VSC 3 | An alternative ground for the conclusion that I should not disqualify myself from hearing the present application on the ground of apparent bias is this. The test for apparent bias is well-known and it is "whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide": Johnson v Johnson (2000) 201 CLR 488 at 492 [11] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ. In this case, if there is apparent bias, it takes the form of prejudgment. That form of bias was considered by the High Court in Livesey v The New South Wales Bar Association [1983] HCA 17 ; (1983) 151 CLR 288. In assessing that form of apparent bias in this case, the nature of the respondents' application is important. The respondents' application is not one in which I was called upon to make findings as to credit or, indeed, to make any findings of fact. The applicant's allegations of fact may be accepted for the purposes of the respondents' application. The questions raised by the respondents' application are, in substance, questions of law, and, having regard to all the circumstances, I do not think it can be said that a fair-minded lay observer might reasonably apprehend that I might not bring an impartial and unprejudiced mind to the question I am required to decide: Sydney Refractive Surgery Centre Pty Ltd v Federal Commissioner of Taxation (2007) 68 ATR 19 ; Commonwealth Bank of Australia v Taylor [2008] VSC 3. | SUBJ |
Case172 | applied | Coffey v Secretary, Department of Social Security [1999] FCA 375 ; (1999) 86 FCR 434 | First, in my opinion, to relitigate the events of 27 March 2006 is an abuse of process and the pursuit of the claim for unlawful discrimination would involve a relitigation of the events of 27 March 2006. The Court has a wide jurisdiction to protect a party from an abuse of process constituted by an attempt to relitigate a case already disposed of: Walton v Gardiner [1993] HCA 77 ; (1993) 177 CLR 378 at 392-393 per Mason CJ, Deane and Dawson JJ. It seems clear on the authorities that a proceeding may constitute an abuse of process because it involves an attempt to relitigate a dispute already judicially determined even though none of the doctrines of res judicata , issue estoppel in the strict sense or an Anshun estoppel are made out: Coffey v Secretary, Department of Social Security [1999] FCA 375 ; (1999) 86 FCR 434 at 443 [25] ; Spalla v St George Motor Finance Ltd (No 6) [2004] FCA 1699 at [58] - [70] per French J; SZAJB v Minister for Immigration and Citizenship (2008) 168 FCR 410 at 423 [37]-[39] per French J (with whom Tracey J agreed at 437 [114]); Brock v Minister for Home Affairs (2008) 170 FCR 434 at 447 [74] per Lindgren and Tracey JJ. The claim for unlawful discrimination represents an attempt to relitigate the events of 27 March 2006 and is an abuse of process. I am mindful of the fact that, as events transpired, the claim for unlawful discrimination could not have been brought in the earlier proceeding, but that does not dissuade me from reaching the conclusion that I have expressed. The fact is that it was the applicant who decided to institute the earlier proceeding the day after the relevant events, to lodge his complaint with the Commission about three weeks after the relevant events, and to wait until 14 July 2006 before advising the Court that he had lodged a complaint with the Commission. | OBJ |
Case173 | referred to | Cox v Journeaux (No 2) [1935] HCA 48 ; (1935) 52 CLR 713 | In Cox v Journeaux (No 2) [1935] HCA 48 ; (1935) 52 CLR 713 , Dixon J (as his Honour then was) considered the meaning of personal injury or wrong done to the bankrupt within s 63(3) of the Bankruptcy Act 1924-1933 (Cth). His Honour applied Wilson v United Counties Bank Ltd [1920] AC 102 and described (at 721) the relevant test in the following terms: The test appears to be whether the damages or part of them are to be estimated by immediate reference to pain felt by the bankrupt in respect of his mind, body or character and without reference to his rights of property. | OBJ |
Case174 | referred to | Johnson v Johnson (2000) 201 CLR 488 | An alternative ground for the conclusion that I should not disqualify myself from hearing the present application on the ground of apparent bias is this. The test for apparent bias is well-known and it is "whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide": Johnson v Johnson (2000) 201 CLR 488 at 492 [11] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ. In this case, if there is apparent bias, it takes the form of prejudgment. That form of bias was considered by the High Court in Livesey v The New South Wales Bar Association [1983] HCA 17 ; (1983) 151 CLR 288. In assessing that form of apparent bias in this case, the nature of the respondents' application is important. The respondents' application is not one in which I was called upon to make findings as to credit or, indeed, to make any findings of fact. The applicant's allegations of fact may be accepted for the purposes of the respondents' application. The questions raised by the respondents' application are, in substance, questions of law, and, having regard to all the circumstances, I do not think it can be said that a fair-minded lay observer might reasonably apprehend that I might not bring an impartial and unprejudiced mind to the question I am required to decide: Sydney Refractive Surgery Centre Pty Ltd v Federal Commissioner of Taxation (2007) 68 ATR 19 ; Commonwealth Bank of Australia v Taylor [2008] VSC 3. | SUBJ |
Case175 | referred to | Livesey v The New South Wales Bar Association [1983] HCA 17 ; (1983) 151 CLR 288 | An alternative ground for the conclusion that I should not disqualify myself from hearing the present application on the ground of apparent bias is this. The test for apparent bias is well-known and it is "whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide": Johnson v Johnson (2000) 201 CLR 488 at 492 [11] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ. In this case, if there is apparent bias, it takes the form of prejudgment. That form of bias was considered by the High Court in Livesey v The New South Wales Bar Association [1983] HCA 17 ; (1983) 151 CLR 288. In assessing that form of apparent bias in this case, the nature of the respondents' application is important. The respondents' application is not one in which I was called upon to make findings as to credit or, indeed, to make any findings of fact. The applicant's allegations of fact may be accepted for the purposes of the respondents' application. The questions raised by the respondents' application are, in substance, questions of law, and, having regard to all the circumstances, I do not think it can be said that a fair-minded lay observer might reasonably apprehend that I might not bring an impartial and unprejudiced mind to the question I am required to decide: Sydney Refractive Surgery Centre Pty Ltd v Federal Commissioner of Taxation (2007) 68 ATR 19 ; Commonwealth Bank of Australia v Taylor [2008] VSC 3. | SUBJ |
Case176 | applied | Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 ; (1981) 147 CLR 589 | Save and except for the alleged breaches of the deed of settlement (see the earlier judgment at [15]), all the causes of action in the present proceeding are different from those advanced in the earlier proceeding. Nevertheless, all the causes of action are based on the conduct of the second respondent acting for the first respondent on 27 March 2006 and its aftermath. The doctrine of res judicata may apply in relation to the cause of action in the present proceeding based on breaches of the deed of settlement but it does not apply to the other causes of action in the present proceeding. The doctrine of issue estoppel in the strict sense may apply to those causes of action, although it is difficult to be at all certain because of the lack of coherence in the applicant's pleadings in the present proceeding. The extended doctrine of issue estoppel as articulated in Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 ; (1981) 147 CLR 589 ("Anshun estoppel") certainly applies in relation to all of the other claims and there is no reason they could not have been brought in the earlier proceeding. In the circumstances, the pursuit of the other claims is an abuse of process. 33 I turn now to consider the claim for unlawful discrimination. 34 In his amended statement of claim, the applicant alleges breaches or contraventions by the respondents of ss 5 , 6 , 22 and 24 of the DD Act . Section 22(1) plainly does not apply because, on any view, the alleged discrimination is not of a type which falls within the terms of that subsection. Subsection (2) provides: It is unlawful for an educational authority to discriminate against a student on the ground of the student's disability or a disability of any of the student's associates: (a) by denying the student access, or limiting the student's access, to any benefit provided by the educational authority; or (b) by expelling the student; or (c) by subjecting the student to any other detriment. | OBJ |
Case177 | referred to | Rana v University of South Australia [2007] FCAFC 188 | The applicant lodged an appeal against the order I made dismissing the proceeding but, on 4 December 2007, the Full Court of this Court dismissed the appeal and ordered that the appellant in the appeal pay the respondent's costs thereof: Rana v University of South Australia [2007] FCAFC 188. 12 The applicant then applied to the High Court for special leave to appeal against the orders made by the Full Court but, on 15 May 2008, that application was dismissed. 13 One other point to note about the earlier proceeding is this. Before the present proceeding was instituted, the applicant made a complaint about the respondent's conduct to the Human Rights and Equal Opportunity Commission ("the Commission") (as it then was). In the course of a directions hearing in the earlier proceeding held on 14 July 2006, I fixed 17 and 18 August 2006 for the trial of the earlier proceeding. Those dates were subsequently vacated and, as I have said, the proceeding was heard on 5 and 6 October 2006. The point to be made is that at the directions hearing held on 14 July 2006, the applicant said that he had a complaint of "disability discrimination on the same fact by the University". He said that the complaint had been lodged with the Commission. He said that the first respondent had asked for an extension of time to respond. The applicant raised the possibility of the proceeding then before the Court (that is, the earlier proceeding) being delayed so that it could be dealt with at the same time as any proceeding following the applicant's complaint to the Commission. In response, counsel for the first respondent said: Your Honour, we sought an extension of time from the Human Rights Commission. Perhaps we ought more properly have explained to them that these proceedings were on foot because, as I understand it, that would forestall the progression of any complaint stage in the Commission, and that is their policy, that is my understanding of their policy. The matter is only at the complaint stage; no proceedings have been issued. ... ... as I understand it the complaint stage needs to be worked through the Commission and examined by the Commissioner before formal proceedings are able to be initiated. We have undertaken mediation unsuccessfully. I think that the parties are some great difference apart in terms of the legal basis of the claim, but the mediation did crystallise some of the issues and we would seek that the matter be brought to trial as expeditiously as possible because we see that the trial is the only way to resolve those matters. | OBJ |
Case178 | referred to | Rana v University of South Australia [2007] FCA 816 | The trial of the earlier proceeding was held on 5 and 6 October 2006. On 31 May 2007, I made an order that the proceeding be dismissed and I delivered reasons for judgment: Rana v University of South Australia [2007] FCA 816. I will refer to those reasons as the earlier judgment. 9 One point to note, and the relevance of this will become apparent, is that in the course of the earlier judgment I said (at [4]) that I found the applicant "a most unsatisfactory witness" and that I did not accept his evidence except where it accorded with other evidence which I accepted. I said that the applicant's evidence as to important events changed during the course of the proceeding, that some of his evidence was highly improbable and a good deal of his evidence was inconsistent with evidence which I accepted. | OBJ |
Case179 | referred to | Rana v University of South Australia (No 2) [2007] FCA 941 | On 19 June 2007, I made an order that the applicant pay the respondent's costs of the proceeding on an indemnity basis: Rana v University of South Australia (No 2) [2007] FCA 941. I said the following (at [6]): In my opinion, this is an appropriate case for the award of indemnity costs. Mr Rana made allegations about payment for the tickets and what occurred at the Convention Centre which were critical to his case and he must have known were untrue. Those allegations should not have been made. He claimed that he had suffered loss and damage of $1 million but he proved no loss or damage. He altered a document, namely, a receipt, so that his case would appear stronger. These circumstances alone justify an award of indemnity costs. A further and probably independent reason for awarding indemnity costs is that he refused an offer of $400 in relation to a claim which I dismissed. In all the circumstances, it is appropriate to order that costs be paid on an indemnity basis. | OBJ |
Case180 | applied | Spalla v St George Motor Finance Ltd (No 6) [2004] FCA 1699 | First, in my opinion, to relitigate the events of 27 March 2006 is an abuse of process and the pursuit of the claim for unlawful discrimination would involve a relitigation of the events of 27 March 2006. The Court has a wide jurisdiction to protect a party from an abuse of process constituted by an attempt to relitigate a case already disposed of: Walton v Gardiner [1993] HCA 77 ; (1993) 177 CLR 378 at 392-393 per Mason CJ, Deane and Dawson JJ. It seems clear on the authorities that a proceeding may constitute an abuse of process because it involves an attempt to relitigate a dispute already judicially determined even though none of the doctrines of res judicata , issue estoppel in the strict sense or an Anshun estoppel are made out: Coffey v Secretary, Department of Social Security [1999] FCA 375 ; (1999) 86 FCR 434 at 443 [25] ; Spalla v St George Motor Finance Ltd (No 6) [2004] FCA 1699 at [58] - [70] per French J; SZAJB v Minister for Immigration and Citizenship (2008) 168 FCR 410 at 423 [37]-[39] per French J (with whom Tracey J agreed at 437 [114]); Brock v Minister for Home Affairs (2008) 170 FCR 434 at 447 [74] per Lindgren and Tracey JJ. The claim for unlawful discrimination represents an attempt to relitigate the events of 27 March 2006 and is an abuse of process. I am mindful of the fact that, as events transpired, the claim for unlawful discrimination could not have been brought in the earlier proceeding, but that does not dissuade me from reaching the conclusion that I have expressed. The fact is that it was the applicant who decided to institute the earlier proceeding the day after the relevant events, to lodge his complaint with the Commission about three weeks after the relevant events, and to wait until 14 July 2006 before advising the Court that he had lodged a complaint with the Commission. | OBJ |
Case181 | referred to | Sydney Refractive Surgery Centre Pty Ltd v Federal Commissioner of Taxation (2007) 68 ATR 19 | An alternative ground for the conclusion that I should not disqualify myself from hearing the present application on the ground of apparent bias is this. The test for apparent bias is well-known and it is "whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide": Johnson v Johnson (2000) 201 CLR 488 at 492 [11] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ. In this case, if there is apparent bias, it takes the form of prejudgment. That form of bias was considered by the High Court in Livesey v The New South Wales Bar Association [1983] HCA 17 ; (1983) 151 CLR 288. In assessing that form of apparent bias in this case, the nature of the respondents' application is important. The respondents' application is not one in which I was called upon to make findings as to credit or, indeed, to make any findings of fact. The applicant's allegations of fact may be accepted for the purposes of the respondents' application. The questions raised by the respondents' application are, in substance, questions of law, and, having regard to all the circumstances, I do not think it can be said that a fair-minded lay observer might reasonably apprehend that I might not bring an impartial and unprejudiced mind to the question I am required to decide: Sydney Refractive Surgery Centre Pty Ltd v Federal Commissioner of Taxation (2007) 68 ATR 19 ; Commonwealth Bank of Australia v Taylor [2008] VSC 3. | SUBJ |
Case182 | applied | SZAJB v Minister for Immigration and Citizenship (2008) 168 FCR 410 | First, in my opinion, to relitigate the events of 27 March 2006 is an abuse of process and the pursuit of the claim for unlawful discrimination would involve a relitigation of the events of 27 March 2006. The Court has a wide jurisdiction to protect a party from an abuse of process constituted by an attempt to relitigate a case already disposed of: Walton v Gardiner [1993] HCA 77 ; (1993) 177 CLR 378 at 392-393 per Mason CJ, Deane and Dawson JJ. It seems clear on the authorities that a proceeding may constitute an abuse of process because it involves an attempt to relitigate a dispute already judicially determined even though none of the doctrines of res judicata , issue estoppel in the strict sense or an Anshun estoppel are made out: Coffey v Secretary, Department of Social Security [1999] FCA 375 ; (1999) 86 FCR 434 at 443 [25] ; Spalla v St George Motor Finance Ltd (No 6) [2004] FCA 1699 at [58] - [70] per French J; SZAJB v Minister for Immigration and Citizenship (2008) 168 FCR 410 at 423 [37]-[39] per French J (with whom Tracey J agreed at 437 [114]); Brock v Minister for Home Affairs (2008) 170 FCR 434 at 447 [74] per Lindgren and Tracey JJ. The claim for unlawful discrimination represents an attempt to relitigate the events of 27 March 2006 and is an abuse of process. I am mindful of the fact that, as events transpired, the claim for unlawful discrimination could not have been brought in the earlier proceeding, but that does not dissuade me from reaching the conclusion that I have expressed. The fact is that it was the applicant who decided to institute the earlier proceeding the day after the relevant events, to lodge his complaint with the Commission about three weeks after the relevant events, and to wait until 14 July 2006 before advising the Court that he had lodged a complaint with the Commission. | OBJ |
Case183 | applied | Walton v Gardiner [1993] HCA 77 ; (1993) 177 CLR 378 | First, in my opinion, to relitigate the events of 27 March 2006 is an abuse of process and the pursuit of the claim for unlawful discrimination would involve a relitigation of the events of 27 March 2006. The Court has a wide jurisdiction to protect a party from an abuse of process constituted by an attempt to relitigate a case already disposed of: Walton v Gardiner [1993] HCA 77 ; (1993) 177 CLR 378 at 392-393 per Mason CJ, Deane and Dawson JJ. It seems clear on the authorities that a proceeding may constitute an abuse of process because it involves an attempt to relitigate a dispute already judicially determined even though none of the doctrines of res judicata , issue estoppel in the strict sense or an Anshun estoppel are made out: Coffey v Secretary, Department of Social Security [1999] FCA 375 ; (1999) 86 FCR 434 at 443 [25] ; Spalla v St George Motor Finance Ltd (No 6) [2004] FCA 1699 at [58] - [70] per French J; SZAJB v Minister for Immigration and Citizenship (2008) 168 FCR 410 at 423 [37]-[39] per French J (with whom Tracey J agreed at 437 [114]); Brock v Minister for Home Affairs (2008) 170 FCR 434 at 447 [74] per Lindgren and Tracey JJ. The claim for unlawful discrimination represents an attempt to relitigate the events of 27 March 2006 and is an abuse of process. I am mindful of the fact that, as events transpired, the claim for unlawful discrimination could not have been brought in the earlier proceeding, but that does not dissuade me from reaching the conclusion that I have expressed. The fact is that it was the applicant who decided to institute the earlier proceeding the day after the relevant events, to lodge his complaint with the Commission about three weeks after the relevant events, and to wait until 14 July 2006 before advising the Court that he had lodged a complaint with the Commission. | OBJ |
Case184 | referred to | Wilson v United Counties Bank Ltd [1920] AC 102 | In Cox v Journeaux (No 2) [1935] HCA 48 ; (1935) 52 CLR 713 , Dixon J (as his Honour then was) considered the meaning of personal injury or wrong done to the bankrupt within s 63(3) of the Bankruptcy Act 1924-1933 (Cth). His Honour applied Wilson v United Counties Bank Ltd [1920] AC 102 and described (at 721) the relevant test in the following terms: The test appears to be whether the damages or part of them are to be estimated by immediate reference to pain felt by the bankrupt in respect of his mind, body or character and without reference to his rights of property. | OBJ |
Case185 | referred to | SZARH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 615 | The appellant filed on 2 March 2004 an application in the Federal Magistrates Court for judicial review of the Tribunal's decision. The appellant filed an amended application on 19 October 2004 which raised various grounds of review. The appellant claimed that the Tribunal overlooked some critical points of her case and did not address all the relevant issues she had raised, including whether she was considered a 'traitor' because of the anti-governmental views of her family. The appellant also claimed the Tribunal: failed to ask relevant questions, failed to determine whether the appellant was subject to persecution because of her imputed political opinion, failed to determine the 'particular social group' the applicant belonged to, and failed to enquire as to whether the appellant's past or future conduct would amount to persecution. The appellant also referred the Court below to the decision of SZARH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 615 , which was said by the appellant to raise similar issues to her proceedings currently before the Court. 10 The appellant's application below was heard on 22 May 2006, and a further submission was filed on 2 June 2006. Although the appellant did not seek leave to raise that further submission, the Federal Magistrate decided to consider the matters the subject thereof. That submission dealt in substance with the implications of the filing out of time of her application for review, and referred the Court below to judicial precedents purportedly supportive of the appellant's claims in that regard. 11 The Federal Magistrate was satisfied the appellant had established a reasonable excuse for the delay in bringing the application for review. In considering the appellant's substantive claims, the Federal Magistrate found that the Tribunal did consider the aspects of the appellant's claims and that there was no evidence that any claim to the effect that the appellant was a 'traitor' was ever made to the Tribunal. The Federal Magistrate considered the appellant's contention that the Tribunal did not properly consider her claim to be a member of a particular social group. His Honour found this ground could not rightly stand, pointing out at [31] as follows: "It is well established that a social group cannot be constituted by victims of crime, let alone potential victims of crime, which appears to be the applicant's claim. In any event, the nature of the particular social group claimed by the applicant in the submission was not put to the Tribunal, on the evidence before me". 12 In line however with what I have observed at [8] above, the Federal Magistrate found the Tribunal did adequately address the issue of effectiveness of state protection in the Ukraine of persons such as the appellant. In relation to the authorities cited by the appellant, his Honour distinguished the same on the facts. The Federal Magistrate found that no case for jurisdictional error was made out and dismissed the application. 13 The Federal Magistrate was also of the opinion that there existed strong compassionate reasons based upon and referrable to humanitarian grounds, which relate largely to the circumstances of the appellant's age, single status and family circumstances. 14 The notice of appeal filed in the Federal Court raised the following grounds: that the Tribunal failed to assess the appellant's 'claims against proper information' and that the Federal Magistrate and the Tribunal misunderstood the appellant's particular social group. 15 The appellant, by way of submissions dated 10 November 2006, submitted that the Tribunal assessed her claims against 'all women advanced in years and living alone in Ukraine'. The appellant contended that the Tribunal should have particularised her social group as 'aged, single women who had relatives overseas, who travelled overseas and who are considered as the ones who had money'. The appellant further submitted that had the Tribunal assessed her claims against that second particular social group, 'it would have no difficulty to accept that [her] claims are Convention-related because there would have been a great deal of independent information consistent with my claims'. | OBJ |
Case186 | referred to | A pplicant S v Minister for Immigration and Multicultural Affairs [2004] HCA 25 ; (2004) 217 CLR 387 | The Minister submitted that the Federal Magistrate's conclusion that a social group cannot be constituted by victims or potential victims of crime 'is consistent with authority that a social group cannot be defined merely by a shared fear of persecution'. In support of that proposition, the Minister referred to A pplicant S v Minister for Immigration and Multicultural Affairs [2004] HCA 25 ; (2004) 217 CLR 387 at [36] , where Gleeson CJ, Gummow and Kirby JJ observed as follows: '...the determination of whether a group falls within the definition of "particular social group" in Art 1A(2) of the Convention can be summarised as follows. First, the group must be identifiable by a characteristic or attribute common to all members of the group. Secondly, the characteristic or attribute common to all members of the group cannot be the shared fear of persecution. Thirdly, the possession of that characteristic or attribute must distinguish the group from society at large. Borrowing the language of Dawson J in Applicant A (59), a group that fulfils the first two propositions, but not the third, is merely a "social group" and not a "particular social group". As this Court has repeatedly emphasised, identifying accurately the "particular social group" alleged is vital for the accurate application of the applicable law to the case in hand (60).' | OBJ |
Case187 | referred to | NABE v Minister for Immigration and Indigenous Affairs (No2) [2004] FCAFC 263 ; (2004) 144 FCR 1 | Reiterating the reasoning of Scarlett FM, the Minister made the further submission that 'the Tribunal is not obliged to deal with a case not put to it or that does not clearly arise on the material before it', and that the 'social groups suggested by the appellant before His Honour were never put to the Tribunal'. The Minister referred to NABE v Minister for Immigration and Indigenous Affairs (No2) [2004] FCAFC 263 ; (2004) 144 FCR 1 in support of that contention. 20 After articulating the Minister's case with his usual precision, and pointing out why no jurisdictional error in the Tribunal's reasons for decision could be distilled, in line of course with the Federal Magistrate's decision, counsel for the Minister concluded as follows: 'The social group that the appellant now suggests doesn't fall into either of those categories and, in any event, even leaving those two matters aside, the Tribunal's conclusions as to effective protection in the Ukraine would be another answer to them. Your Honour, plainly there are humanitarian aspects in this case. They were referred to by the learned Magistrate. I'm sure your Honour is fully cognisant of them, but all we can do is draw the remarks of the Magistrate and if your Honour makes any similar remarks, your Honour's remarks to the attention of the Department. Ultimately there is nothing more we can do because it's a matter purely for the Minister.' 21 I find the Minister's submissions persuasive and, consequently, find no error in the Tribunal's decision or that of the Federal Magistrate below. It is also my opinion that the observations made by counsel for the Minister were entirely apposite, and I would wholly endorse what he thus frankly and responsibly indicated. I would respectfully recommend to the Minister that there be a reconsideration of the evident plight of the appellant and the understandable concern and anxiety of her only close relatives, who now live in Australia as Australian citizens. The appellant's case is in my respectful view very strong on compassionate grounds, being an opinion in line with that of the Federal Magistrate below. 22 The appeal must be dismissed. I also make an order, nunc pro tunc, that the Refugee Review Tribunal, which was a party to the proceedings below, be joined as a respondent to the application. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti. Associate: Dated: 30 January 2007 Appellant appeared in person Counsel for the Respondent: Mr T Reilly Solicitor for the Respondent: Blake Dawson Waldron Date of Hearing: 14 November 2006 Date of Judgment: 30 January 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/32.html | OBJ |
Case188 | related | Dunstan v Human Rights and Equal Opportunity Commission (No 2) [2005] FCA 1885 | application relates to a purported appeal from a decision of Mansfield J delivered on 21 December 2005 ( Dunstan v Human Rights and Equal Opportunity Commission (No 2) [2005] FCA 1885). On 6 November 2006 I struck out the notice of appeal in ACD 4 of 2006 but granted leave to Mr Dunstan to re-plead by filing an amended notice of appeal on or before 2 February 2007, and the matter was stood over until today with costs reserved. I indicated to Mr Dunstan on that occasion that the notice of appeal simply did not comply with the Rules of Court in relation to the form and substance of such a document, and explained that it was fundamental that there be a notice of appeal in proper form. I then adverted to the fact that legal advice in a situation of this kind is very helpful, if not essential. I also mentioned the possibility of some pro bono assistance. I have given some consideration to that again but I do not think that it is appropriate to take any steps in relation to that. This is a very particular case which Mr Dunstan presented himself before the trial judge, and to bring anybody in to deal with this on a pro bono basis is, I think on reflection, not likely to be helpful. | OBJ |
Case189 | affirmed | SZJXC v the Minister for Immigration and Citizenship [2006] FMCA 545 | This is an appeal from a decision of the Federal Magistrates Court which dismissed an application for review of a decision of the Refugee Review Tribunal affirming a decision of a delegate of the Minister to refuse the appellant a protection visa. The nature of the appellant's protection visa application, the reasons of the Tribunal and the Federal Magistrate are set out in more detail in the Federal Magistrate's decision, SZJXC v the Minister for Immigration and Citizenship [2006] FMCA 545 , which is available on the internet. 2 The appellant is a citizen of the People's Republic of China and his claim to be a refugee rests on an alleged fear of persecution based on his involvement in the practice of Falun Gong. 3 In his protection visa application he claimed to have been a member of Falun Gong since 1999. He said that after Falun Gong was banned by the authorities he would transport members for meetings and gatherings and provide emergency transportation. He claimed that in March 2005 while assisting the leader to escape from detention he was caught by police and held and interrogated for eight days and suffered "serious mental and physical torment". He claimed to have been forced to attend re-education classes and be supervised by what was called the 610 office. His job was "interfered many times," [ sic ] the truck he drove was checked frequently, members of his family were questioned many times and "we all lost our freedom". | OBJ |
Case190 | applied | Ebner v Official Trustee in Bankruptcy [2000] HCA 63 ; (2000) 205 CLR 337 | I am satisfied that in the circumstances disclosed in this matter a fair minded lay observer might reasonably apprehend that the Tribunal member might not have brought an impartial mind to the resolution of the question the Tribunal was required to decide: Ebner v Official Trustee in Bankruptcy [2000] HCA 63 ; (2000) 205 CLR 337 at [6] . Background 4 The facts are not in issue, the following being drawn largely from the applicant's submissions. 5 The applicant is a citizen of Bangladesh who was born on 2 June 1986. He first entered Australia on 23 April 1991 when he was 5 years old as a dependent of his father, who was employed with the Bangladesh Embassy in Canberra. On 27 April 2006 he lodged an application for a subclass 457 Business (Long stay) visa, as a dependent of his mother. 32 While judges of the High Court have questioned the actual suitability to private and non-curial proceedings, of the test for reasonably apprehended bias that has evolved in curial settings: see Re Refugee Review Tribunal; ex parte H [2001] HCA 28 ; (2001) 179 ALR 425 at [27] - [28] ; it is that "double might" test that is to be applied, albeit with the understanding that the hypothetical fair-minded lay observer in question requires some informed appreciation of the nature of the processes and proceeding of the body whose judgment is being called into question. The test to be applied is whether a fair-minded lay observer might reasonably apprehend that the Tribunal member might not have brought an impartial mind to the resolution of the question to be decided: Ebner , at [6]. | SUBJ |
Case191 | cited | Re Refugee Review Tribunal; ex parte H [2001] HCA 28 ; (2001) 179 ALR 425 | While judges of the High Court have questioned the actual suitability to private and non-curial proceedings, of the test for reasonably apprehended bias that has evolved in curial settings: see Re Refugee Review Tribunal; ex parte H [2001] HCA 28 ; (2001) 179 ALR 425 at [27] - [28] ; it is that "double might" test that is to be applied, albeit with the understanding that the hypothetical fair-minded lay observer in question requires some informed appreciation of the nature of the processes and proceeding of the body whose judgment is being called into question. The test to be applied is whether a fair-minded lay observer might reasonably apprehend that the Tribunal member might not have brought an impartial mind to the resolution of the question to be decided: Ebner , at [6]. | SUBJ |
Case192 | applied | Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 ; (2001) 205 CLR 507 | It is presently important to emphasise, as Hayne J did in Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 ; (2001) 205 CLR 507 at [184] that the development and application of the test of reasonable apprehension avoids the need for a court: ... to attempt some analysis of the likely or actual thought processes of the decision-maker. It objectifies what otherwise would be a wholly subjective inquiry and it poses the relevant question in a way that avoids having to predict what probably will be done, or to identify what probably was done, by the decision-maker in reaching the decision in question. 35 Because of the manner in which the case was originally put, it is appropriate to refer as well to the further observation of Hayne J in Jia Legeng (at [185]) that: Saying that a decision-maker has prejudged or will prejudge an issue, or even saying that there is a real likelihood that a reasonable observer might reach that conclusion, is to make a statement which has several distinct elements at its roots. First, there is the contention that the decision-maker has an opinion on a relevant aspect of the matter in issue in the particular case. Secondly, there is the contention that the decision-maker will apply that opinion to that matter in issue. Thirdly, there is the contention that the decision-maker will do so without giving the matter fresh consideration in the light of whatever may be the facts and arguments relevant to the particular case. Most importantly, there is the assumption that the question which is said to have been prejudged is one which should be considered afresh in relation to the particular case. 41 The applicant's case in its initial form and prior to its being brought within the shadow of Eastman , was founded upon the four "elements" propounded by Hayne J in Jia Legeng I have set out above. Put in terms of those elements, it was contended that, first the Senior Member had on 30 May 2009 formed an opinion on a relevant aspect of the matter in issue in the Tribunal; ie that the applicant had committed, or was suspected on reasonable grounds of having committed, a criminal offence on 1 May 2008. This was relevant to the issue of whether the applicant did not pass the character test. It was also relevant in addition by reason of para 1.10 of Direction No 21, as unresolved criminal charges as "general conduct", which the Tribunal was required to take into account under para 2.10 when considering whether it was likely to be repeated. Secondly , despite his protestations to the contrary, it is inconceivable that the Tribunal did not take such credible, relevant and significant material into account when it found that there was an unacceptable risk that the applicant would reoffend: cf Applicant VEAL of 2002 at [17]. Thirdly , it is apparent from the way in which the case was conducted that the Tribunal did not give this issue any fresh consideration in the light of whatever may have been the facts and arguments relevant to the particular case. To the contrary, the Tribunal member resisted receiving any further evidence from the applicant relating to the matter, thereby leaving the state of the evidence at the time of its decision being that presented to it by the AFP on 30 May 2008. Finally , it is contended that the Tribunal was required to consider the unresolved criminal charges as part of its overall consideration of whether his so-called general conduct was likely to be repeated. This much is apparent from Direction 21. 51 As with the Eastman case, I regard the circumstances of this matter as distinctive. While they may be able to be pigeon holed within the four "elements" referred to by Hayne J in Jia Legeng as the applicant first contended, that process does not sufficiently accentuate what in my view are the essential concerns which the unusual course of conduct followed in this matter exposes. These are to maintain the integrity of the Tribunal's processes and procedures and to provide public reassurance of that integrity. | SUBJ |
Case193 | cited | Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 | Because, as will be seen, the application of this test in this matter does require an examination, amongst other things of the Tribunal's reasons, it is important to emphasise that the lay observer would be scrutinising those reasons through a quite different prism and by reference to a quite different contingency, than a judge would be when scrutinising a decision-maker's reasons for decision for the purpose of discerning an error justifying judicial review: cf Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 271-272. To say this is not to accord the hypothetical observer licence to indulge in implausible or improbable interpretations of reasons for decision. The lay observer is expected first and foremost to be "fair minded". | SUBJ |
Case194 | cited | Vakauta v Kelly [1989] HCA 44 ; (1989) 167 CLR 568 | While the evidence in the matter is that the Tribunal member who issued the listening device warrant was named in an AFP statement of facts given to the applicant in August 2008, it has not been suggested that he was aware at the time of the Tribunal hearing that the member hearing the review application was the person who issued the warrant. Neither did the Tribunal member disclose that fact if he was then actually aware of it. In consequence, and counsel for the Minister accepted, there was no issue of waiver of bias in this matter: see Vakauta v Kelly [1989] HCA 44 ; (1989) 167 CLR 568 at 572-573; see also Shingles v Defence Force Retirement and Death Benefits Authority [2009] FCA 1211. | OBJ |
Case195 | cited | Shingles v Defence Force Retirement and Death Benefits Authority [2009] FCA 1211 | While the evidence in the matter is that the Tribunal member who issued the listening device warrant was named in an AFP statement of facts given to the applicant in August 2008, it has not been suggested that he was aware at the time of the Tribunal hearing that the member hearing the review application was the person who issued the warrant. Neither did the Tribunal member disclose that fact if he was then actually aware of it. In consequence, and counsel for the Minister accepted, there was no issue of waiver of bias in this matter: see Vakauta v Kelly [1989] HCA 44 ; (1989) 167 CLR 568 at 572-573; see also Shingles v Defence Force Retirement and Death Benefits Authority [2009] FCA 1211. | OBJ |
Case196 | considered | R v Eastman (1994) 121 FLR 150 | The authorities most immediately relevant in a factual setting such as the present on the applicant's contentions are R v Eastman (1994) 121 FLR 150 and R v George (1987) 9 NSWLR 527. In each case, at some time prior to the criminal proceedings in question, the judge who respectively became the trial judge authorised the use of a listening device in relation to the person who was ( Eastman ), or subsequently became ( George ), the accused in the proceedings. In George the particular matter before the judge under the Listening Devices Act did not involve anything to do with the subject of the later charges. In Eastman the contrary was the case and, when the matter was drawn to his attention, the trial judge disqualified himself on the ground of reasonable apprehension of bias. As he said (at 153): What distinguishes this application from the application made in R v George is that the warrants were issued by me on the application of one or more police officers so as to facilitate the acquisition of evidence against the accused. In two instances the exercises were successful, because the Crown proposes to lead evidence of having installed listening devices under the authority of two warrants and the evidence thereby obtained. The ground for disqualifying myself is much stronger than that confronted by the trial judge in R v George . In George in contrast, an appeal challenging a conviction of the ground of apprehended bias was dismissed, the Court having regard to the nature of a criminal trial, the various activities in which judges may be involved in the administration of criminal justice and particularly "to the absence of any association [of the listening device matter] with this particular case. (ii) Procedural Fairness 41 The applicant's case in its initial form and prior to its being brought within the shadow of Eastman , was founded upon the four "elements" propounded by Hayne J in Jia Legeng I have set out above. Put in terms of those elements, it was contended that, first the Senior Member had on 30 May 2009 formed an opinion on a relevant aspect of the matter in issue in the Tribunal; ie that the applicant had committed, or was suspected on reasonable grounds of having committed, a criminal offence on 1 May 2008. This was relevant to the issue of whether the applicant did not pass the character test. It was also relevant in addition by reason of para 1.10 of Direction No 21, as unresolved criminal charges as "general conduct", which the Tribunal was required to take into account under para 2.10 when considering whether it was likely to be repeated. Secondly , despite his protestations to the contrary, it is inconceivable that the Tribunal did not take such credible, relevant and significant material into account when it found that there was an unacceptable risk that the applicant would reoffend: cf Applicant VEAL of 2002 at [17]. Thirdly , it is apparent from the way in which the case was conducted that the Tribunal did not give this issue any fresh consideration in the light of whatever may have been the facts and arguments relevant to the particular case. To the contrary, the Tribunal member resisted receiving any further evidence from the applicant relating to the matter, thereby leaving the state of the evidence at the time of its decision being that presented to it by the AFP on 30 May 2008. Finally , it is contended that the Tribunal was required to consider the unresolved criminal charges as part of its overall consideration of whether his so-called general conduct was likely to be repeated. This much is apparent from Direction 21. 43 In light of what was said by Gallop J in Eastman , the applicant contends as well that, having made a decision to issue a warrant which required him to form a view of the applicant's recent charge, the Tribunal member ought to have disqualified himself from hearing the subsequent application which required him to form a view of the applicant's conduct and whether he was likely to re-offend. 44 For my own part, I again emphasise that the test to be applied does not require analysis of the likely or actual thought processes of the Tribunal. There is no evidence as to whether, if at all prior to his decision the member recalled issuing the warrant involving Mr Islam. Such view as the lay observer might take on that matter, provided it is reasonable, may well be mistaken. That is not to the point. 45 The Tribunal did not disclose at the hearing its participation in the issue of the warrant. The member may well have had no memory of that. The member, equally, may have known or have become aware of that participation but have considered he could or should neutralise the significance of it by determining the matter without taking into account "in any way" the 1 May 2008 allegations. Alternatively and despite the significance to be attributed to "general conduct" at the stage of exercising the s 501(1) discretion (which could include "unresolved charges pending a hearing": Direction No 21, the member may have been of the view that account ought not be taken of the 1 May charge in any event as the applicant had not been convicted as charged. I express no view on any of these speculations other than to say that they would be contingencies which a fair minded lay observer could reasonably canvas in forming his or her judgment of the matter. 51 As with the Eastman case, I regard the circumstances of this matter as distinctive. While they may be able to be pigeon holed within the four "elements" referred to by Hayne J in Jia Legeng as the applicant first contended, that process does not sufficiently accentuate what in my view are the essential concerns which the unusual course of conduct followed in this matter exposes. These are to maintain the integrity of the Tribunal's processes and procedures and to provide public reassurance of that integrity. 52 As Eastman illustrates, the potential is there for apparent compromise of an official's decision making whenever a close relationship or association exists between the subject matter of an administrative or judicial decision to be taken by that official, and adverse information obtained (or an adverse opinion formed) relating to that subject matter in the course of, or as a result of, a separate earlier decision taken by the same official for other purposes. Where it might reasonably be said that the having of (or having had) that information or opinion by virtue of a prior official decision might compromise the proper and impartial taking of the later decision, the same official ought not participate in the later decision. To do so would involve the member in the discharge, in the circumstances, of incompatible functions. Such was the case here. 53 It was inappropriate for the Tribunal member, having determined to authorise the issue of the warrant in relation to Mr Islam, to have then made the s 501(1) refusal determination given the association in subject matter of the two determinations or at least to have done so without the informed waiver of objection by Mr Islam to his so doing. Absent such waiver, I am satisfied that the "double might" test of the fair minded lay observer would inevitably be satisfied. 54 I have emphasised the complex of competing possible views, that the conduct of the Tribunal member, the course of the hearing and the Tribunal's decision, could reasonably engender in the lay observer. In my view, despite the Tribunal's and, for that matter, the Minister's disclaimers, such an observer could reasonably entertain an apprehension that the Tribunal's decision might have suffered from prejudgment. The closely associated decision-making that occurred here ought not be countenanced. The Tribunal should have procedures to guard against such a possibility. | SUBJ |
Case197 | cited | R v George (1987) 9 NSWLR 527 | The authorities most immediately relevant in a factual setting such as the present on the applicant's contentions are R v Eastman (1994) 121 FLR 150 and R v George (1987) 9 NSWLR 527. In each case, at some time prior to the criminal proceedings in question, the judge who respectively became the trial judge authorised the use of a listening device in relation to the person who was ( Eastman ), or subsequently became ( George ), the accused in the proceedings. In George the particular matter before the judge under the Listening Devices Act did not involve anything to do with the subject of the later charges. In Eastman the contrary was the case and, when the matter was drawn to his attention, the trial judge disqualified himself on the ground of reasonable apprehension of bias. As he said (at 153): What distinguishes this application from the application made in R v George is that the warrants were issued by me on the application of one or more police officers so as to facilitate the acquisition of evidence against the accused. In two instances the exercises were successful, because the Crown proposes to lead evidence of having installed listening devices under the authority of two warrants and the evidence thereby obtained. The ground for disqualifying myself is much stronger than that confronted by the trial judge in R v George . In George in contrast, an appeal challenging a conviction of the ground of apprehended bias was dismissed, the Court having regard to the nature of a criminal trial, the various activities in which judges may be involved in the administration of criminal justice and particularly "to the absence of any association [of the listening device matter] with this particular case. (ii) Procedural Fairness | SUBJ |
Case198 | cited | Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 ; (2005) 225 CLR 88 | It is unnecessary to refer separately here to the applicable principles other than to note, as I do below, the applicant's primary reliance on the decision of the High Court in Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 ; (2005) 225 CLR 88. 39 As I earlier indicated, the two grounds of this application are that, first, the Tribunal's decision was affected by reasonably apprehended bias and, secondly, denial of procedural fairness. As to the latter ground, as formulated in the application it was that: 4.2.1 The issue of whether the applicant had committed a criminal offence on 1 May 2008 was credible, relevant and significant to the decision on whether or not to affirm the refusal of the visa. As such, the Tribunal was required, as a matter of procedural fairness, to give the applicant an opportunity to respond to information regarding the allegation that he had committed an offence on 1 May 2008. 4.2.3 During the hearing of the application before the Tribunal on 28 November 2008 the Tribunal repeatedly denied the applicant an opportunity to provide a detailed or adequate response to the allegation that he had committed an offence on 1 May 2008. 40 During the course of the hearing there was some movement in, and a coming together of, the grounds. This will become apparent in what follows. (a) Apprehended Bias 41 The applicant's case in its initial form and prior to its being brought within the shadow of Eastman , was founded upon the four "elements" propounded by Hayne J in Jia Legeng I have set out above. Put in terms of those elements, it was contended that, first the Senior Member had on 30 May 2009 formed an opinion on a relevant aspect of the matter in issue in the Tribunal; ie that the applicant had committed, or was suspected on reasonable grounds of having committed, a criminal offence on 1 May 2008. This was relevant to the issue of whether the applicant did not pass the character test. It was also relevant in addition by reason of para 1.10 of Direction No 21, as unresolved criminal charges as "general conduct", which the Tribunal was required to take into account under para 2.10 when considering whether it was likely to be repeated. Secondly , despite his protestations to the contrary, it is inconceivable that the Tribunal did not take such credible, relevant and significant material into account when it found that there was an unacceptable risk that the applicant would reoffend: cf Applicant VEAL of 2002 at [17]. Thirdly , it is apparent from the way in which the case was conducted that the Tribunal did not give this issue any fresh consideration in the light of whatever may have been the facts and arguments relevant to the particular case. To the contrary, the Tribunal member resisted receiving any further evidence from the applicant relating to the matter, thereby leaving the state of the evidence at the time of its decision being that presented to it by the AFP on 30 May 2008. Finally , it is contended that the Tribunal was required to consider the unresolved criminal charges as part of its overall consideration of whether his so-called general conduct was likely to be repeated. This much is apparent from Direction 21. 49 On both of these issues the reasonable and fair minded lay observer could well consider he or she was being asked to, but was unable to, accept that the Tribunal could satisfactorily bifurcate the information it might possess on both those matters, and that it could reach its conclusion on each by reference, for example, to the three bail breaches while not taking into account in any way the view it had of the significance and character of the 1 May 2008 charge derived from the listening device hearing. While the significance of "subconscious effect" is to be treated with circumspection in procedural fairness cases given the relevant inquiry in such cases: cf Applicant VEAL at [19]; the issues of appearance and judgment in apprehended bias cases are, in my view, differently appointed. They do involve an appeal to the good sense and experience of the reasonably informed and fair minded lay (not judicial ) observer. 50 If the lay observer might experience some difficulty or reserve in accepting the potential efficacy of a self imposed "Chinese wall" in containing a prior formed opinion, that would well be compounded by the somewhat Delphic character of the Tribunal member's concluding comment on the November 2007 warning from the Minister about "any further conduct bringing him within the provisions of s 501": Unfortunately this warning appears to have not been taken seriously. 59 Unlike in Applicant VEAL both the Tribunal and the applicant were aware of the charge and of its being disregarded. As Mr Islam indicated when told it would be so treated "I appreciate it" it was to his advantage. What Mr Islam did not know and was not told, was of the member's participation in the issue of the warrant. The non-disclosure of that participation did not of itself raise a procedural fairness issue. It did set the scene, though, for the applicant's apprehended bias challenge. 60 I will order that: 1. The application be allowed. 2. The decision of the Tribunal be set aside. 3. The matter be remitted to the Tribunal to be determined according to law. 4. The first respondent pay the applicant's costs of the application. I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn. Associate: Dated: 18 December 2009 Counsel for the Applicant: Mr N Poynder Solicitor for the Applicant: VISA Lawyers Australia Pty Ltd Counsel for the First Respondent: Mr P Grey with Mr P Knowles Solicitor for the First Respondent: Clayton Utz Counsel for the Second Respondent: The Second Respondent did not appear. Date of Hearing: 21 October 2009 Date of Judgment: 18 December 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/1526.html | SUBJ |
Case199 | cited | SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 228 CLR 152 | In light of the delegate's decision adverse to Mr Islam which, seemingly, relied upon the 1 May 2008 charge in relation to the likelihood of re-offending. Mr Islam ought have expected that that charge would be an issue arising in the Tribunal that was potentially prejudicial to him: cf SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 228 CLR 152 at [35] (a Refugee Review Tribunal review under Part 7 of the Migration Act ). Accordingly he would have been entitled, if such was an issue against him, "to be given an opportunity of replying to it": Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 at 582. The existence of the charge was raised by the applicant and he asserted his innocence. The Tribunal member, first told him "we don't want to go into too much detail about that", but then later told Mr Islam that as he had not been convicted of it "I will not be taking that into account". Whether or not the Tribunal erred by so excluding this information (given the requirements of Direction No 21) is not in issue before me and I express no view on it. | SUBJ |
Case200 | cited | Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 | In light of the delegate's decision adverse to Mr Islam which, seemingly, relied upon the 1 May 2008 charge in relation to the likelihood of re-offending. Mr Islam ought have expected that that charge would be an issue arising in the Tribunal that was potentially prejudicial to him: cf SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 228 CLR 152 at [35] (a Refugee Review Tribunal review under Part 7 of the Migration Act ). Accordingly he would have been entitled, if such was an issue against him, "to be given an opportunity of replying to it": Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 at 582. The existence of the charge was raised by the applicant and he asserted his innocence. The Tribunal member, first told him "we don't want to go into too much detail about that", but then later told Mr Islam that as he had not been convicted of it "I will not be taking that into account". Whether or not the Tribunal erred by so excluding this information (given the requirements of Direction No 21) is not in issue before me and I express no view on it. | SUBJ |
Case201 | applied | Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam [2003] HCA 6 ; (2003) 214 CLR 1 | Whatever may have been the Tribunal's obligation to Mr Islam in relation to the charge prior to the second of the above comments, the charge thereafter was not itself an issue potentially prejudicial to Mr Islam on the review. He could suffer no "practical injustice": Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam [2003] HCA 6 ; (2003) 214 CLR 1 at [38] ; "[he] lost no opportunity to advance his case": ibid. The marginalisation of the charge did not in any way impede Mr Islam from advancing positive reasons for why the Tribunal's discretion should be exercised in his favour. He was not denied procedural fairness. | SUBJ |
Case202 | followed | Kowalski v MMAL Staff Superannuation Fund Pty Ltd (2009) 178 FCR 401 | Kowalski v MMAL Staff Superannuation Fund Pty Ltd (2009) 178 FCR 401 the Full Court examined the origins, meaning and effect of s 31A of the FCA Act. The Full Court stated (at 408, [25]): The effect of s 31A was to soften the test for a successful application for summary judgment as stated by the High Court in Theseus Exploration NL v Foyster [1972] HCA 41 ; (1972) 126 CLR 507 ... and also the test for a successful application for summary dismissal as stated by Dixon J, as his Honour then was, in Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 and by Barwick CJ in General Steel Industries Inc v Cmr for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125.... See also Jefferson Ford Pty Ltd v Ford Motor Co of Australia Ltd [2008] FCAFC 60 ; (2008) 167 FCR 372 at [45] , [57], [63], [124]. | OBJ |
Case203 | followed | White Industries Australia Ltd v Commissioner of Taxation [2007] FCA 511 ; (2007) 160 FCR 298 | effect noted and by reference to secondary materials, the Full Court counselled that "a generally cautious approach should still be adopted to the exercise of the court's powers under s 31A" (at 408, [28]). The Full Court particularly endorsed an observation concerning s 31A made by Lindgren J in White Australia Industries Ltd v Commissioner of Taxation [2007] FCA 511 ; (2007) 160 FCR 298 at 310, [50] that the section is concerned with "the bringing and defending of proceedings, not just with pleadings, with substance, not just with form". Section 31A consigns to the Court a discretion as to whether the questions of law raised in a case are of such difficulty as to make it preferable not to resolve them summarily. It was not submitted that this was such a case in relation to issues related to the NTA. Rather, each of the parties invited the determination of them insofar as pertinent to the respondents' summary judgment application. In the event that I concluded that there was jurisdiction and standing, I was not asked to determine either summarily or as a separate question of law the merits of the State law issue as to the ability now of officers of the State under the Petroleum Act to grant petroleum leases on the strength of ATP 259P. For the purpose of the summary judgment application, the parties assumed that the factual foundation of the Applicants' case was as alleged in the amended statement of claim. I have done likewise. | OBJ |
Case204 | applied | The Lardil Peoples v Queensland [2001] FCA 414 ; (2001) 108 FCR 453 | submission of Santos, Delhi Petroleum and the State that the application has no reasonable prospects of success is, in summary: (a) the Applicants do not seek a determination of native title in the present proceeding; (b) the definition of "future act" in s 233(1) of the NTA is that it is an act which, apart from the NTA, either validly affects (in the sense that word is to be understood in light of in s 227 of the NTA) native title in relation to the land or would, if valid, affect native title; (c) in light of Full Court's judgment in The Lardil Peoples v Queensland [2001] FCA 414 ; (2001) 108 FCR 453 ( Lardil ), to secure final relief of the kind sought by the Applicants it is not sufficient to establish only that an act might affect native title if native title were found to exist; (d) a corollary of this is that mere status as a registered native title claimant can never supply the requisite element in the definition of future act, which is also an element in any entitlement to the relief sought. The Applicants, in summary, make the following submission in response: (a) Lardil is distinguishable because it related to procedural rights conferred by s 24HA and s 24NA of the NTA and not the right to negotiate under Subdiv P of Div 2 of Pt 3 of that Act; (b) in any event, the declaration that the grant of a petroleum lease would not constitute a pre-existing rights based act does not require the Applicants to establish that they have native title because, if there is no valid ATP, it necessarily follows that there could be no valid grant of a petroleum lease. The latter submission entails some exploration of the ability of this Court to make any pronouncement in relation to the validity of an administrative actions arising only under State law. That is best considered in conjunction with the separate, jurisdictional challenge which Santos and Delhi Petroleum make. Lardil is not distinguishable. To the contrary, that case confirms, in a binding way, what a reading of the definition of "future act" in s 233 of the NTA would in any event suggest. That is, materially, that a future act is one which "affects" native title, not an act which, if native title existed, "might" affect it. To construe the definition in the latter way would, as French J (as the Chief Justice then was) observed in Lardil (at 473, [59]), "require a re-writing of the statutory definition in s 233 which would significantly alter the operation of the act. Such a course is not justified by the language of a statute". Similar sentiments are evident in the judgments of the other members of the Full Court in Lardil see p 476, [70] per Merkel J and p 486, [114] per Dowsett J. The "right to negotiate" claimed by the Applicants forms part (Subdiv P) of Div 3 of Pt 2 of the NTA. Regard to the overview of Div 3 of Pt 2 of the NTA, offered by s 24AA, also exposes the flaw in the Applicants' position. Thus, s 24AA(1) accurately informs the reader that Div 3 "deals mainly with future acts, which are defined in s 233" and that, " Acts that do not affect native title are not future acts; therefore this Division does not deal with them " (emphasis added). In turn, s 24AA(2) of the NTA offers the accurate general observation that, "to the extent that a future act affects native title, it will be valid if covered by certain provisions of the Division, and invalid if not". These general propositions, evident from the overview of Div 3, are expressly articulated in s 24OA of the NTA, which provides: 24OA Future acts invalid unless otherwise provided. Unless a provision of this Act provides otherwise, a future act is invalid to the extent that it affects native title. This section does not attend with invalidity a future act which might affect native title, were the same to exist. As in Lardil , the relief sought by the Applicants is final relief in a proceeding where no claim for native title is advanced. They rely on their status as the "registered native title claimant". Yet the advancing and successful vindication of a native title claim, not status as the "registered native title claimant", is, given the definition of "future act", just as central to the application of provisions upon which the Applicants rely as it was to those under consideration in Lardil . To seek to distinguish Lardil on the basis that the rights within Div 3 of Pt 2 with which that case was concerned were "procedural rights" ignores this centrality. For the purposes of s 31A of the FCA Act the Respondents have established that the Applicants have no reasonable prospect of securing any of the declaratory and injunctive relief which they seek, insofar as they rely on other than State law for any part of that relief. Jurisdiction & Standing Section 81 of the NTA confers on the Court jurisdiction to hear and determine applications that "relate to native title". Read in isolation and as a matter of first impression and language, the jurisdiction conferred by this section appears to require nothing more or less than a relevant connection between the subject matter of an application and native title. In Lardil though (108 FCR at [156] and [68]), the conclusion was reached, after a consideration of the context in which s 81 appears in the NTA, that the section confers jurisdiction only in respect of applications under Pt 3 of that Act. This is not such an application. Perhaps recognising this, the Applicants did not point to s 81 as a source of jurisdiction to entertain their application. Instead, they adverted to s 213(2) of the NTA, to s 39B(1A)(c) of the Judiciary Act 1903 (Cth) (Judiciary Act) and to s 21 of the FCA Act. Subject to the operation and effect of the other provisions of the NTA, s 213(2) confers jurisdiction on the Court "in relation to matters arising under the Act". For its part, s 39B(1A)(c) of the Judiciary Act confers jurisdiction with respect to "matters arising under any laws made by the Parliament". The reference to s 21 of the FCA Act as a source of jurisdiction is misconceived. That section operates where some other provision has conferred original jurisdiction on the Court and, in such circumstances, empowers the Court to "make binding declarations of right, whether or not any consequential relief is or could be claimed". In other words, s 21 is a source of power, not jurisdiction. Common to each of s 39B(1A)(c) of the Judiciary Act and s 213(2) of the NTA is that the jurisdiction they confer is confined to the "matters" which those sections respectively specify. No point was taken in Lardil as to the absence in that case of a "matter". In the present case the amended statement of claim contains the following allegations: The applicants on behalf of the Wongkumara People are the registered native title claimant within the meaning of s 253 of the Native Title Act 1993 (Cth) (the NTA) in respect of land in south-west Queensland and north-west New South Wales, which land ("the Claimed Land") is more particularly described in attachment B to Native Title Determination Application QUD52 of 2008 (as amended by leave granted by Dowsett J on 12 April 2008). The first respondent and third respondent are recorded in the register kept under s 80A of the Petroleum Act 1923 (Qld) (the Petroleum Act ) as the holder of an Authority to Prospect (ATP) 259P dated 31 January 1979 pursuant to the Petroleum Act in respect of land in south-west Queensland (the ATP Land), which land lies wholly within the boundaries of the Claimed Land. The second respondent is a Government party within the meaning of s 26(1) of the NTA for lands and water within the state of Queensland. 3A. Since the grant of ATP 259P the first and third respondents have prospected and continue to prospect for petroleum on the ATP Land including the Claimed Land. From about late 2005, representatives of the Wongkumara People and of the first respondent on behalf of the itself and the third respondent and other companies being joint venture partners of the first and third respondents have been engaged in negotiations for an indigenous land use agreement ("the proposed ILUA") under the Native Title Act 1993 (Cth) (NTA), which negotiations relate, inter alia, to proposed future acts under the NTA in respect of the Claimed Land covered by the ATP. 4A. The proposed ILUA is to replace an Indigenous Land Use Agreement ("the former ILUA") that was part of an Implementation Agreement dated 16 January 2001 and which was in force for a term of five years. 4B. The former ILUA was never registered under the NTA. In the course of negotiations for the former ILUA and for the proposed ILUA the first respondent on behalf of itself and its joint venture partners has claimed that because ATP 259P predates the NTA and the grant of a petroleum lease under the Petroleum Act is a pre-existing rights based act (PERBA) within the meaning of Subdivision I of Division 3 of Part 2 of the NTA and as such is not subject to the right to negotiate provisions of Subdivision P of Division 3 of Part 2 of the NTA and should not be part of the negotiations for the proposed ILUA. Particulars Clause 9.4 of the former ILUA Letter dated 4 November 2005 from the first respondent to representatives of the Wongkumara People. The applicants have maintained that they are entitled to the right to negotiate under the NTA in respect of the grant of petroleum lease over the Claimed Land covered by the ATP and that the grant of a petroleum lease should be part of the negotiations for the proposed ILUA. Particulars Clause 9.4 of the former ILUA Letter dated 18 June 2008 from Eddy Neumann Lawyers, solicitors for the applicant, to the first respondent. ATP 259P was originally issued on 31 January 1979 for a term of four years commencing n 1 January 1979. From time to time thereafter, the term of ATP 259P has purportedly been varied, extended or renewed. Particulars (a) 22 December 1982: variation by which the term was renewed for four years commencing on 1 January 1983. (b) 18 December 1986: variation by which the term was extended for four years commencing on 1 January 1987. (c) 7 May 1991: renewal by which the ATP was renewed for a term of four years commencing on 1 January 1991. (d) 20 September 1995: renewal by which the ATP was renewed for a term of four years commencing on 1 January 1995. (e) 24 June 1999: renewal by which the ATP was renewed for a term of four years commencing on 1 January 1999. (f) 12 December 2003: variation by which the term of the ATP was extended for four years commencing on 1 January 2003. (g) 3 January 2008: renewal by which the term of the ATP was renewed for a term of four years commencing January 2007. Read with the relief sought by the Applicants, the amended statement of claim offers, in my opinion, a paradigm example of an impermissible attempt to secure an advisory opinion. What is revealed is nothing more than a difference in contractual negotiating positions between the Applicants, who claim in other proceedings, but have not yet been determined to hold, native title in respect of the claimed land and Santos and Delhi Petroleum who may one day seek to obtain from the State a petroleum lease in respect over part of the claimed land on the strength of ATP259P. It is not pleaded that any such lease has been granted or is even imminently to be granted. In effect, what the Applicants seek is advice as to whether, were it to be determined that they hold native title and were a petroleum lease to be sought by and granted to Santos or to Delhi Petroleum by the State, that lease, if otherwise valid, would be an invalid future act if the negotiation requirements found in Subdiv P of Div 3 of Pt 2 of the NTA were not complied with? The hypothetical nature of the application is self evident. To adapt the language employed by Zamir I and Lord Woolf in the passage quoted, the question would only be whether the Applicants, Santos and Delhi Petroleum were generally obliged to act in a certain way? Before anything more meaningful than an answer to that question could be given, the legal and factual issues just mentioned would have to be determined and occur. In Lardil (at 490, [136]), Dowsett J expressly adverted to the question of whether the Applicants in that case had standing to pursue the claim for relief insofar as it sought a declaration of invalidity under State law. His Honour doubted that they had standing. Nonetheless, he went on to consider the State law question, ultimately concluding that the decision sought to be impugned was valid. Of the other judges, French J, in the minority as to this aspect of the case, was of the view that there was no jurisdiction to determine the State law question. Though Merkel J expressed his agreement with the conclusion reached by Dowsett J as to the validity of the decision under State law, his Honour did not, in terms, expressly extend that agreement to the doubt as to standing which had been expressed by Dowsett J. In Lardil , the majority concluded that the Court had jurisdiction to decide the State law question of the validity of an act under that law because deciding that question was an essential step in any determination of whether there was a "future act" under the NTA. Here, the Applicants have commenced an application not materially distinguishable from Lardil which, in light of that case, is doomed to fail with respect to its Federal aspects. The essential connection with the Federal question provides the only jurisdiction which the Court could have to decide the State law question. In those circumstances, if there were jurisdiction to entertain the Federal question, the deciding of the State law question would be a matter of accrued jurisdiction in respect of which s 23 of the FCA Act would operate so as to confer jurisdiction. In light of Lardil and the fact that the present case is not materially distinguishable from that authority, the present case was doomed to fail. The Federal law aspect of the application was therefore, in the sense the term is used in the cases "colourable". That has the consequence that there is no jurisdiction to entertain the State law aspect of the claim, even if the Applicants had standing. Exercise of Discretion In the event that the foregoing conclusions are wrong, I should nonetheless not be disposed to the grant declaratory relief in respect of so much of the claim as remained and relied for its foundation on the State law question of whether it was lawfully possible to grant petroleum leases on the strength of ATP 259P. That would turn on a question as to whether on the particular dates pleaded there was a power of renewal in the Petroleum Act or otherwise under State law. Lardil indicates that jurisdiction would, in these contingent circumstances, exist to determine such a question in the accrued jurisdiction. | SUBJ |