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UWA was ordered to pay the costs of Dr Gray and Sirtex. A cross-claim brought by Sirtex against UWA was dismissed and Sirtex ordered to pay UWA's costs of that cross-claim. Sirtex succeeded in its cross-claim against Dr Gray. Any party in respect of whom an order for costs has been made in the preceding orders is at liberty to file and serve written submissions on or before 8 May 2008 seeking a variation of the costs order. 15. Any party who wishes to respond to a written submission filed pursuant to the preceding order is to do so by filing and serving a written submission by 29 May 2008. 1.3 Any other order that the Court sees fit. That affidavit concerned settlement negotiations between UWA and Sirtex which had occurred in 2007 prior to the commencement of the hearing. 4 By way of background the solicitors for UWA had sent an open settlement offer to Sirtex on 5 September 2006. The letter of offer was exhibit 243A at trial. In substance the letter proposed that UWA would licence Sirtex, on a world-wide basis, to exploit the patents in contention, the licence to be retroactive to 29 April 1997. A discounted licence fee would be payable. UWA would be recorded as owner of the patents. A 4% royalty on the net price of products using or embodying any claim of any one or more of the patents was proposed. The UWA proceedings against Sirtex would be discontinued with no order as to costs. UWA required that Sirtex cooperate with it in the further conduct of the proceedings against Dr Gray. The offer was accompanied by contentions that the directors of Sirtex were aware at all material times of UWA's interest in the intellectual property. The offer was not accepted. 5 The trial was scheduled to begin in the week commencing Monday, 12 March 2007. On Saturday, 10 March 2007, the solicitors for UWA again wrote to the solicitors for Sirtex making an "Open Offer". The proceedings in WAD 292 of 2004 in so far as they subsist between the University and Sirtex to be discontinued with no order as to costs. 5. A Deed of Release to be executed by the University and Sirtex under which both parties will irrevocably release each other from all claims made against each other in the Proceedings. 6. It is a condition precedent to settlement in accordance with this offer that Sirtex withdraws its opposition to the implementation of the settlement between the University and the Cancer Research Institute Inc, which was approved by the Federal Court of Australia on 9 March 2007. 7. This offer is an open offer and may be withdrawn at any time prior to acceptance by notice in writing served by the University upon Sirtex or its legal representatives in the proceedings. 6 Sirtex responded to UWA's offer through its solicitors by a letter dated 14 March 2007, the day prior to the actual commencement of the trial. In that letter Sirtex responded to the allegations about the awareness of its directors which UWA had made in its letter of 10 March 2007. Sirtex said, in its letter, that it was inappropriate for UWA to make such allegations as there was no evidence to support them. Sirtex nevertheless indicated that it was prepared to resolve the dispute on the terms set out in an attached Deed of Settlement. It also stated that it was content to consider any reasonable amendments to the Deed proposed by UWA provided that they were designed to clarify or perfect its terms, but not otherwise impact on its substance. If the offer were accepted it would no longer be necessary for Sirtex to pursue its cross-claim against CRI. Sirtex notes UWA's interest in a Scholarship to be funded by Sirtex. We are instructed that Sirtex would be happy to consider such a proposal (or a proposal to sponsor research undertaken at UWA) following the resolution of these proceedings. Sirtex reserved all of its rights and stated it would rely upon the letter to claim indemnity costs from that date. 7 The Deed of Settlement attached to the letter provided for a mutual release by UWA and Sirtex of each other and their associated entities from all claims made against each other in the proceeding or arising from or in connection with its subject matter including all claims for transfer of ownership of the patents in contention. It also provided for UWA to acknowledge Sirtex's ownership of the patents and undertake not to challenge Sirtex's entitlement to remain their registered owner. UWA would undertake to take all reasonably necessary steps to ratify, perfect and/or defend Sirtex's registration and/or ownership of the patents as requested by Sirtex in writing. These provisions were stated to be without prejudice to UWA's right to claim against Dr Gray that it had a beneficial interest in the patents for the purposes of its claim to his shareholding in Sirtex. 3.2 Sirtex shall not be liable to provide UWA with the Share Allotment or the Settlement Amount in accordance with clause 3.1 of this Deed if UWA does not have Substantial Success against Gray in the Proceeding. The "Share Allotment" was defined as "an issue of shares in Sirtex to the value of $1.5m (rounded up)". The value of the shares was to be calculated by reference to the Volume Weighted Average Price for the five business days commencing two days after the Settlement Date. The Settlement Date was defined as "the date of exchange of the duly executed counterparts of this Deed". 11 Mr Price said in his initial affidavit that no response was received to the offer from UWA. That statement was erroneous as he acknowledged in a second affidavit. We refer to your letter dated 14 March 2007 with respect to an offer to settle by Sirtex Medical Limited. 2. The offer of settlement is unacceptable to our client. 3. The effect of your offer of 14 March 2007 is to reject our client's offer of 10 March 2007. That is, it is no longer open to your client to accept it. Makes the declarations sought in Order 7 of the second substituted application filed 1 March 2007 ("the Application"). 2. Subject to the undertaking by the applicant in paragraph 3 hereof, makes orders 8 to 10 sought in the application. 3. Notes the undertaking of the applicant to the Court that it will not seek to enforce the above order 2 upon the entry by Sirtex into a deed whereby the applicant will be entitled to royalties with respect to the intellectual property identified in the attached schedule in an amount as agreed between the parties within 14 days or as ordered by the Court upon the appointment and report of an expert pursuant to FCR Order 34 rule 2. 4. Order the second respondent to pay the applicant royalties in the amount set in accordance with order 3 above for the period 1 May 1997 to the date of judgment together with interest thereon. 5. Costs. 13 A proposed deed in accordance with the proposed order 3 was annexed to the submissions. The Deed provided for Sirtex to pay a royalty in respect of the exploitation of products using or incorporating a claim under any of the patents and patent applications specified in Schedule 1 to the Deed including any Confidential Information comprised in or relating to the inventions the subject of the patents. The Deed would have contained an acknowledgment by UWA that nothing in it transferred title to the patents to UWA. UWA would have ratified, with effect from the date of execution of the Deed, each of the assignments to Sirtex pleaded in its statement of claim. The Deed included an undertaking by UWA not to challenge or question Sirtex's title to or interest in each of the patents, the validity of any of the patents or any application by Sirtex to register a trade mark in connection with any of the patents. It is not necessary to go further into the details of the deed, the substance of it is clear enough from the preceding outline. 14 On 2 May 2008 the solicitors for Sirtex wrote to the solicitors for UWA seeking its consent to an order for indemnity costs. That case having failed, the claim against Sirtex cannot succeed and will be dismissed. I should add as I have already found that Sirtex was not at any time on notice of a potential claim by UWA through any of its directors other than Dr Gray. The application of any cause of action based on knowing involvement in his alleged breaches of fiduciary duty would have depended entirely upon his role as a director of Sirtex and whether his knowledge could be attributed to the company. 15 On 8 May 2008, the time for filing an appeal from the primary judgment of 17 April 2008 expired. UWA filed a notice of appeal in respect of the dismissal of its application against Dr Gray. It has not appealed against the dismissal of its application against Sirtex. Sirtex acknowledged that its success in the cross-claim against Dr Gray left it open to seek from him, by way of damages, the difference between the costs it would recover from UWA on a party and party basis and the costs it had actually incurred in these proceedings. It submitted that having regard to UWA's conduct in refusing its offer justice required that the difference in costs be borne by UWA. Dr Gray had no control over the conduct of UWA in responding to the Sirtex offer. 17 Counsel for Sirtex submitted that it was clear at the time that UWA refused the offer that it was seeking to maintain an untenable position under which it would have everything from everybody. 18 In its written outline of submissions, Sirtex acknowledged that the power to award indemnity costs is in the Court's discretion and would be exercised "when the justice of the case so requires": Federal Court of Australia Act 1976 (Cth) s 43(2). As Sirtex put it the question for determination was whether it was unreasonable for UWA to reject its offer. A conditional offer to settle was properly the subject of consideration by the Court. (b) UWA is in a significantly worse position as a result of running its trial against Sirtex than it would have been had it accepted the offer. (c) Assessed at the time of the offer, but with the benefit of hindsight (and even without the benefit of hindsight), UWA was highly unlikely to succeed in its claim. (d) It was entirely unnecessary for UWA to pursue a claim against Sirtex when it had two other respondents with very substantial assets available to them which would have satisfied the claims of UWA realistically put at their highest. (e) UWA initiated the "open offer" regime as a means of seeking to gain an advantage in relation to any award of costs. 20 Sirtex, after referring to the absence of merit in the UWA case, submitted that the condition contained in its offer that UWA achieve "Substantial Success" against Dr Gray was, for two reasons, reasonable and prudent on the part of the board of a publicly listed company protecting innocent shareholders. The case against Sirtex was contingent upon UWA's succeeding against Gray. That was self-evident on the pleadings. Secondly, UWA had maintained at all times that the conditions of Substantial Success would be satisfied. 21 Sirtex was a public company. There was no question of its solvency at the time the open offer was made nor any need for security to be provided to support its offer. Sirtex submitted that in substance it was offering UWA a very substantial sum to resolve the matter as between them on a condition that UWA have Substantial Success against the alleged primary wrong doer. This was in circumstances where UWA had secured the potential fruits of any judgment against Gray and CRI. 22 Sirtex referred to the dates at which affidavits of evidence were filed. UWA's affidavits in chief were filed on 5 December 2006. Dr Gray's affidavit in chief was filed on 31 January 2007 and Sirtex's affidavits on 20 and 21 December 2006. UWA, it said, had nearly three months to consider Sirtex's evidence and six weeks to consider Dr Gray's evidence before the Sirtex offer was made. The evidence referred to, it was said, should clearly have indicated to UWA that its case against Sirtex was hopeless. There was no implied contractual term conferring an interest on UWA in respect of intellectual property developed by Dr Gray. 2. Although Dr Gray was conducting research for the benefit of some entity other than UWA there was no claim against him for breach of fiduciary duty on that account. 3. UWA had no capacity to alienate or interfere with substantive property rights by regulation. 4. The Intellectual Property Regulations were not promulgated at the relevant time. 5. UWA had repeatedly failed to make a timely claim against Sirtex. 6. Professor Barber's reply to the Gorn letter was written in his capacity as Acting Vice Chancellor. 7. UWA adopted a deliberate strategy of withholding knowledge of a potential claim. 8. Sirtex was not put on notice of the claim until October 2004. 9. The claim, when finally made, was misleading. 10. UWA advanced for the first time in its closing submissions the contention that Sirtex was a volunteer but then decided not to press the submission. 11. UWA could not rely on Dr Gray's knowledge to claim against Sirtex. This factor depends upon submissions on which no finding was made. 12. There was no answer to Sirtex's defences based on estoppel, laches and delay. 13. The relief sought by UWA was untenable. 23 The preceding considerations were in part derived from findings made in the judgment. Some aspects involving UWA's reliance upon Dr Gray's knowledge to support its claim against Sirtex and the absence of any "answer" to defences based on estoppel, laches and delay reflect an assumption that Sirtex would have succeeded in relation to those matters. That is not to say they would not have succeeded. However there was no determination of those matters in the judgment. 24 Sirtex submitted that to the extent that it had incurred costs on and after the closure of its open offer on 19 March 2007 commensurately Dr Gray's exposure under the cross-claim had increased. If the Court were to accept its submissions that UWA's refusal to accept its offer was unreasonable, then it only seemed appropriate that the extra costs fall at the feet of UWA rather than Dr Gray. The sum offered was inclusive of costs and made shortly prior to the commencement of the trial at which time the parties had already incurred very substantial costs. It was difficult for UWA to ascertain what, if any, amount was attributed in the offer to the value of its claims and what amount, if any, attributed to costs. 2. There was a real difficulty in ascertaining the value of the offer so as to compare it to the value of the relief claimed against Sirtex. A calculation of the value of the offer required UWA to assign values to the amount offered and the likelihood of various contingencies. 3. The sum offered did not vary according to the extent of UWA's success. 4. The sum offered was contingent upon UWA succeeding in its claims against Dr Gray. In the circumstances that have arisen where UWA failed against Dr Gray and Sirtex failed in its cross-claim against UWA, UWA is only worse off than it would have been if it had accepted the offer in that it has now been ordered to pay Sirtex's costs of the trial except insofar as they are referable to the costs of Sirtex's cross-claim against Dr Gray. 5. Regardless of whether the offer was accepted by UWA, Sirtex would still have been an active participant in the trial by reason of its cross-claim against Dr Gray. 6. The time for payment did not arise until after the conclusion of any appeal or time for appeal. 7. The Court had not had occasion to consider the relief to which UWA would have been entitled if it had succeeded in establishing liability. 8. The offer was made on the eve of the trial and was expressed to be open for acceptance for a period of five days, representing in total three business days. 26 Sirtex's submissions in reply, filed on 1 July 2008, referred to various cases for the proposition that in assessing the reasonableness of an offer the Court should have regard to the ultimate analysis by the Court of uncontroversial facts. The finding that there was an implication of law in Dr Gray's employment was based on essentially uncontroversial facts. 27 In relation to the contingency attached to the offer, Sirtex observed that UWA's case against it was necessarily a contingent one. It would have been a major compromise for Sirtex to forego its right to costs to that date from UWA. (b) UWA was plainly materially worse off for having rejected Sirtex's offer. It is liable for Sirtex's costs. It has no chance of obtaining a payment of $1.5 million or an equivalent value of Sirtex shares. It has appealed against the dismissal of its application against Dr Gray and regards itself as entitled to succeed against him. In those circumstances, it was submitted UWA could not say it was not worse off. UWA had argued that it improved its position by running the trial because it succeeded against Sirtex in respect of Sirtex's cross-claims. But that cross-claim only arose if UWA succeeded in any of its claims. 28 Sirtex submitted there was no uncertainty as to the meaning of "Substantial Success" in the proposed Deed. The suggestion of uncertainty was only raised by UWA for the first time on 3 June 2008. It did not suggest in March 2007 that it had any difficulty understanding the offer that had been put. As to the date from which indemnity costs should be ordered, and in the light of Mr Price's correcting affidavit of 3 June 2008, that UWA rejected Sirtex's offer on 15 March 2007, it was submitted that UWA should pay indemnity costs from that date. Many of these cases turn on their own facts. The starting point for consideration of the motion is the discretion in relation to costs conferred upon the Court by s 43 of the Federal Court Act. 30 Ordinarily that discretion will be exercised so that costs follow the event and are awarded on a party and party basis. A departure from normal practice to award indemnity costs requires some special or unusual feature in the case: Alpine Hardwood (Aust) Pty Ltd v Hardys Pty Ltd (No 2) [2002] FCA 224 ; (2002) 190 ALR 121 at [11] (Weinberg J) citing Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 at 233 (Sheppard J). 31 Order 23 provides for offers of compromise. In this case it was not suggested that the Sirtex offer complied with the requirements of O 23. In any event that Order is not a code. 32 The general principles governing the exercise of the discretion to award indemnity costs after rejection by an unsuccessful party of a so called Calderbank letter were set out in the judgment of the Full Court in Black v Lipovac [1998] FCA 699 ; (1998) 217 ALR 386. Mere refusal of a "Calderbank offer" does not itself warrant an order for indemnity costs. To obtain an order for indemnity costs the offeror must show that the refusal to accept it was unreasonable. 3. The reasonableness of the conduct of the offeree is to be viewed in the light of the circumstances that existed when the offer was rejected. 33 The preceding general principles inform the exercise of the discretion. That discretion is not to be fettered by transformation of approaches and practices developed through the cases into quasi statutory rules. It is not a necessary condition of the power to award costs that a collateral purpose be shown. 34 I accept that the making of a rolled up offer inclusive of costs and interest may detract from the weight to be given to its refusal in the exercise of the discretion. Finn J referred to authorities on the point in GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd [2003] FCA 688 ; (2003) 201 ALR 55 at [34] . His Honour cited single judge decisions to the effect that such offers ought not to be a relevant consideration on the question of costs and would not be considered in the same way as a Calderbank letter. His Honour was invited to depart from that line of first instance authority. However he was not prepared to say it was clearly wrong. 35 While respecting the general approach to rolled up offers reflected in the cases to which Finn J referred, such approaches cannot be calcified into rules of law which fetter a general discretion. They simply reflect a common sense proposition that generally speaking such an offer is not unreasonably refused. There may, however, be circumstances where a rolled up offer, refused by an applicant who is unsuccessful, may support a claim for indemnity costs. 36 On the question of the level of unreasonableness necessary to attract the discretion, I respectfully agree with the comment of Sackville J in Seven Network Limited v News Limited (2007) 244 ALR 374 at [62] questioning the utility of substituting a requirement that rejection be "plainly unreasonable" for the requirement that it be "unreasonable". Given the evaluative character of the judgment involved the addition of the word "plainly" which is itself evaluative, has no useful function. UWA establishing its case against Dr Gray and, in particular, that he had breached his fiduciary duty. 2. UWA establishing that Sirtex was accessorially liable in relation to that breach, a position that depended upon establishing that Sirtex was aware of facts constituting (and which would have indicated to a reasonable person) the breach of fiduciary duties owed by Dr Gray to UWA. 38 It cannot be said that UWA acted unreasonably in proceeding on the basis that it had a reasonable cause of action against Dr Gray. True it is that the case as framed and presented depended upon an important proposition of law as to the existence of an implied term in the contract of Dr Gray's employment with UWA. But the correctness of that proposition had not previously been tested in Australia in circumstances of the kind which arose in this case. This is not a case, in my opinion, in which it is appropriate to take a hindsight test to the facts known to UWA at the time of Sirtex's offer and conclude that it ought to have known that the law was against it. 39 There were of course other hazards in the way of UWA's path to success against Dr Gray and therefore against Sirtex. The question whether the relevant inventions were made while Dr Gray was an employee of UWA was one issue upon which findings adverse to UWA were made on all but the DOX-Spheres technology. There was also a finding adverse to UWA that none of the Sirtex directors, apart from Dr Gray, were on notice of a potential claim. To establish any cause of action against Sirtex based on knowing involvement in his alleged breaches of fiduciary duty would have depended entirely upon his role as a director of Sirtex and whether his knowledge could be attributed to that company. In addition, UWA faced substantial defences by Sirtex based on UWA's delay in commencing proceedings after it first became aware of the facts relevant to its claimed causes of action. 40 The preceding factors may be seen as weighing to some degree in favour of the Sirtex motion. On the other hand the offer came as the trial commenced. That is a factor, given the focus on the trial process which would then have existed, that militates against a finding of unreasonableness on the part of UWA in refusing the offer. That conclusion is not affected by the fact that Sirtex was making a counter-offer. The counter-offer was not a variation on a theme opened by UWA's offers. It was quite different and could have been proposed earlier. 41 It is also relevant that the offer made no break-up between recovery and costs and interest. To that extent its refusal is less readily able to be characterised as unreasonable. 42 UWA was entering into a complex piece of commercial litigation. The initial letter of demand to Sirtex indicated a level of confidence which was unrealistic given those complexities. But that unrealistic level of confidence does not mean that it did not have an arguable case. 43 There is a mix of factors in this case which are related to the exercise of the discretion which Sirtex seeks to invoke. Some point one way, some another. In the end I am not persuaded that the refusal of the Sirtex offer by UWA was so unreasonable in the circumstances that I ought to award indemnity costs against it. The motion for indemnity costs will be dismissed. I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French. | indemnity costs calderbank letter refusal of offer whether refusal unreasonable variety of factors relevant to assessment of unreasonableness indemnity costs refused costs |
The decision in question is that of the respondent, an employee of the Australian Taxation Office (ATO). The applicant has issued four other sets of proceedings against individual officers of the ATO. The events with which each proceeding is concerned are related. The reasoning on determination of each proceeding is also similar. The respondent objects to the competency of the application on the basis that the decision the subject of the application was a decision making or forming part of the process of making assessments under the A New Tax System (Goods and Services Tax) Act 1999 (Cth) (GST Act) and is excluded by Sch 1 of the ADJR Act. Ivyside claimed GST input tax credits with respect to various purchases in relation to the company. On 22 May 2007, the respondent advised the applicant that the claims at 'label G11' on his activity statement for the period July to September 2006 would be disallowed because valid tax invoices were not produced to substantiate the amount of GST credits claimed. The ATO subsequently issued the applicant notices pursuant to s 264 of the Income Tax Assessment Act 1936 (Cth) (ITAA 1936) and s 353- 10 of the Taxation Administration Act 1953 (Cth) (TAA). On or around 3 October 2007, the ATO issued the applicant an amended assessment and penalties for the July to September quarter of 2006. The applicant asserts that the decision of the respondent included 'purposeful mental and emotional pain and suffering the respondent is inflicting on the applicant; the applicant seeks relief from this harassment; oppression; and unlawful activities of the respondent'. However, in the affidavit in support of the application, the applicant clarifies that the decision of which he is seeking review was the decision by the respondent to deny and refuse him the right to an informal review of a GST issue relating to Ivyside. He stresses in his affidavit that it is not the original decision made by the respondent to disallow the GST entitlements but rather the decision to deny and refuse him an informal review. In support of that claim he annexes a document entitled 'Having your GST issue reviewed'. Generally, an informal review is conducted by an officer who is not involved in the original decision. We will advise you of the outcome of the review, which could include changing the decision or advice, or confirming it. If you'd like to request an informal review, you should contact the person handling your case or the office where the decision was made. This communication was apparently sent by email on 2 January 2008. The applicant also annexes a much earlier letter from the ATO (23 August 1999) in which an apology is extended for distress and inconvenience which had been caused to the applicant and his wife in previous dealings. Assuming that the basis on which review is sought in this matter is a refusal to grant an informal review, the respondent complains that there is no evidence of a request for an informal review and there had been no agreement to conduct an informal review. More importantly, even if there had been such an agreement, a failure to do so would not constitute a decision as defined in s 3(1) and s 3(2) of the ADJR Act as no substantive rights would be affected by such a decision. The annexure appears to relate to refusal to provide an informal review of 'the audit ... conducted', again of which there is no evidence. As observed in Mirvac Homes (NSW) Pty Limited v Airservices Australia (No 1) [2004] FCA 109 by Branson J, the provision in the Federal Court Rules for the filing and service of a notice of objection to competency is intended to encourage a respondent to inform the applicant promptly that the jurisdiction of the Court is in issue. The filing of a notice of objection to competency also places the Court on notice that its jurisdiction to make the orders sought by the applicant in the proceeding is challenged. The Court must then decide, before it makes the orders sought by the applicant or any substantive orders, whether it has jurisdiction to proceed ( R v Federal Court of Australia; Ex parte WA National Football League [1979] HCA 6 ; (1979) 143 CLR 190). In Bray v F Hoffman-La Roche Ltd (2003) 130 FCR 317 , Finkelstein J at [239] expressed the view that, where an issue which is properly characterised as jurisdictional is raised, it should be dealt with at the outset although a different approach was taken in Khatri v Price [1999] FCA 1289 ; (1999) 95 FCR 287 per Katz J at [14]). Whether or not it is necessary to resolve the jurisdictional issue at the outset, it appears to me that the current jurisdictional argument is succinct and independent in the sense that it can be resolved without any other evidentiary enquiry. If the argument is correct, there seems no obvious reason in this case why consideration of the jurisdictional challenge should be further deferred. Deferral has not been sought by the applicant. (As distinct from raising opposition to the objection). The applicant complains that for a period of 9 years between 1990 and 1999 the Commissioner of Taxation (the Commissioner) caused distress to him and his wife by failing to meet the requirements of the ATO Taxpayer's Charter. The applicant relied upon a written apology from the Commissioner dated 23 August 1999. That communication thanks the applicant for taking the time to contact the 'Problem Resolution Service' about legal action being taken against the applicant and his wife. Details relating to specific ATO officers have been referred to their manager for appropriate action. In addition, I have recommended the ATO procedures that brought about the legal action in your case be reviewed to ensure this type of problem does not occur again in the future. Therefore, the decision by the Commissioner to disallow GST input credits claimed by Ivyside would be excluded pursuant to Sch 1(e) of the ADJR Act. Accordingly the substituted ground of the alleged refusal to conduct an informal review would not be a 'decision' at all. He contends that the respondent's decision or conduct is reviewable in this Court and it falls within the class of decisions to which the ADJR Act applies. Section 5 of the ADJR Act provides that a person aggrieved by a decision to which the Act applies may apply to the Court for an order of review on certain grounds. Section 6 of the ADJR Act provides for review of conduct, engaged in, being engaged in or proposed to be engaged in for the purpose of making a decision to which the ADJR Act applies. It is apparent from the definition of 'decision to which this Act applies' in s 3 of the ADJR Act that the Act only applies where there is a making of, proposal to make or requirement to make a decision, the decision is of an administrative character, and the decision is made under an enactment. It is clear that a "decision to which this Act applies" must be a decision of an administrative character, that it may be made in the exercise of a discretion, and that it must be made under an enactment. But these characteristics provide little guidance as to the meaning of the word "decision" upon which the definition in s.3(1) is based. First, the reference in the definition in s.3(1) to "a decision of an administrative character made ... under an enactment" indicates that a reviewable decision is a decision which a statute requires or authorizes rather than merely a step taken in the course of reasoning on the way to the making of the ultimate decision. Secondly, the examples of decision listed in the extended definition contained in s.3(2) are also indicative of a decision having the character or quality of finality, an outcome reflecting something in the nature of a determination of an application, inquiry or dispute or, in the words of Deane J., "a determination effectively resolving an actual substantive issue ". Thirdly, s.3(3), in extending the concept of "decision" to include "the making of a report or recommendation before a decision is made in the exercise of a power", to that extent qualifies the characteristic of finality. Such a provision would have been unnecessary had the Parliament intended that "decision" comprehend every decision, or every substantive decision, made in the course of reaching a conclusive determination. Finally, s.3(5) suggests that acts done preparatory to the making of a "decision" are not to be regarded as constituting "decisions" for, if they were, there would be little, if any, point in providing for judicial review of "conduct" as well as of a "decision ". On the one hand, the purposes of the A.D.(J.R.) Act are to allow persons aggrieved by the administrative decision-making processes of government a convenient and effective means of redress and to enhance those processes. On the other hand, in so far as the ambit of the concept of "decision" is extended, there is a greater risk that the efficient administration of government will be impaired. Although Bowen C.J. and Lockhart J. appeared to emphasize the first of these considerations in Australian National University v. Burns , there comes a point when the second must prevail, as their Honours implicitly acknowledged. To interpret "decision" in a way that would involve a departure from the quality of finality would lead to a fragmentation of the processes of administrative decision-making and set at risk the efficiency of the administrative process. With the exception of s.3(2)(g), the instances of decision mentioned in s.3(2) are all substantive in character. Moreover, the provisions in sub-ss. (1), (2), (3) and (5) of s.3 point to a substantive determination. In this context the reference in s.3(2)(g) to "doing or refusing to do any other act or thing " (emphasis added) should be read as referring to the exercise or refusal to exercise a substantive power. I do not perceive in s.16(1)(b) or in par. (e) of Sched.1 or par. (a) of Sched.2 to the A.D.(J.R.) Act any contrary implication. These exclusions from the A.D.(J.R.) Act or from s.13 appear to have been introduced for more abundant caution and it would be unwise to take too much from them. Views on whether or not particular decisions or conduct constitutes a reviewable decision have not always been unanimous (for example, Guss v Federal Commissioner of Taxation [2006] FCAFC 88 ; (2006) 152 FCR 88). Not only are there questions as to whether conduct constitutes a decision but also whether it is a decision taken under an enactment. For a decision to be reviewable it must be one 'for which provision is made by or under a statute', the provision should be more specific than general (for example, Hutchins v Commissioner of Taxationn (1996) 65 FCR 269 and Electricity Supply Assn of Australia Ltd v Australian Competition & Consumer Commission [2001] FCA 1296 ; (2001) 113 FCR 230). A general authorisation for a body to act in a certain way is not usually regarded as being sufficient to qualify a decision as being one made under an enactment: Salerno v National Crime Authority (1997) 75 FCR 133. A decision will only be "made ... under an enactment" if both these criteria are met. It should be emphasised that this construction of the statutory definition does not require the relevant decision to affect or alter existing rights or obligations, and it will be sufficient that the enactment requires or authorises decisions from which new rights or obligations arise. Similarly, it is not necessary that the relevantly affected legal rights owe their existence to the enactment in question. Affection of rights or obligations derived from the general law or statute will suffice. Nor does the alleged refusal to informally review. In the language of Fox ACJ in Evans v Friemann (1981) 35 ALR 428 at 431 the relevant decision or conduct did not constitute a decision which was final and conclusive for immediate purposes at least. It was not the ultimate or operative determination of an issue as distinct from the determination of issues arising in the course of making such an ultimate decision ( Social Services, Director-General of v Chaney [1980] FCA 87 ; (1980) 31 ALR 571). The best guidance for this is the clear language of Mason CJ in Bond [1990] HCA 33 ; 170 CLR 321 that the decision will generally but not always entail a decision which is final or operative and determinative, at least in a practical sense and a conclusion reached that is a step along the way in the course of reasoning leading to an ultimate decision would not ordinarily amount to a reviewable decision unless the statute provided for the making of a finding or ruling on that point so that the decision, though an indeterminate decision, might accurately be described as a decision under an enactment. When it comes to the consideration of policy, the competing policies on the one hand of permitting aggrieved persons to challenge administrative decisions and on the other, enabling efficient administration of government processes provides some guidance. If the legislation has provided other means of challenging decisions rather than judicial review under the ADJR Act, at least insofar as policy is concerned, availability of a right of challenge is not withheld. In Century Yuasa Batteries Pty Ltd v Commissioner of Taxation (1997) 73 FCR 528 it was held that the Commissioner's decision to seek to recover an amount equal to withholding tax and penalty for late payment due by the applicant and the demand for payment of those sums was not reviewable because it did not constitute a substantive determination. This was because it lacked the necessary element of finality as liability for payment of those sums arose from the operation of the ITAA 1936 and not in consequence of any reviewable decision of the Commissioner. The decision to seek to recover an amount equal to the withholding tax and penalty for late payment from the applicant, and the demand for payment of the same within 14 days, is not a substantive determination. It determines nothing. As such the decision lacks a necessary characteristic of a reviewable decision ( Bond at 337; Hutchins at 274, 277). If the demand is not met by the applicant because of an erroneous view that it is not liable to make the payment, any liability for additional tax for late payment arises from the operation of the ITAA and not in consequence of any reviewable decision of the Commissioner. It is not final or determinative because it does not remove a benefit or expose an applicant to detriment to which it is not already subject. Equally, Cooper J held in Golden City Car & Truck Centre Pty Ltd v Deputy Federal Commissioner of Taxation (1999) 56 ALD 177 , a decision to commence proceedings for recovery of tax due under the ITAA 1936 is not a reviewable decision. See also Madera v Commissioner of Taxation [2004] FCA 1616 ; (2004) 141 FCR 95 at [21] per Stone J (at [18]-[22]). In relation to the alternative ground advanced for the respondent, it is contended that what is sought is a review of the decision which formed part of the process of making or refusing to amend the calculation of tax under the GST Act and as such, it is a decision not capable of review under the ADJR Act being excluded by the provisions of Sch 1(e). The respondent contends that to the extent reliance is placed on the decision of the disallowance of claimed GST input credits, any decision taken in that regard (by the Commissioner rather than the respondent) would fall within the exclusion provisions due to the course of dealings between the parties) ( Bennett Honda Pty Ltd v Deputy Commissioner of Taxation [1984] FCA 414 ; (1984) 4 FCR 99 per Morling J). The respondent stresses that Ivyside (as distinct from the applicant) has appellate procedures available to it in respect of the decision made by or on behalf of the Commissioner to disallow GST input tax credits claimed. It is for that reason that all components of the decisions by the officers of the ATO charged with making that decision are not susceptible to review under the ADJR Act as they fall within the parameters of par e to Sch 1. The revised complaint is as to the refusal of the internal review to discuss the issue. In my view, the alleged actions or conduct of which complaint has been raised by the applicant did not constitute a decision of a reviewable nature within the meaning of the ADJR Act and the authorities. There was no substantive determination. There was no decision having the character or quality of finality and the actions taken, even accepting for purposes that they had the quality asserted by the applicant, simply formed part of a process of leading up to the making of a decision by the Commissioner to disallow the claimed GST input credits claimed by Ivyside. It was not a decision which affected in any way or in any direct sense the applicant's legal rights and obligations. Further and as a distinct ground, even if there were an appropriate basis for review, it could be advanced only by the company, Ivyside not by the applicant. However, if this were the only issue standing in the way of the competency of this application, I may have granted any application to amend the identity of the applicant, or for that matter, the respondent. The difficulty with the competency of the application however, in my view, is much more fundamental, going to jurisdiction. The respondent's jurisdictional objection to competency must be upheld and the claim dismissed. The applicant is to pay the costs of the respondent to be taxed if not agreed. I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher. | judicial review application brought pursuant to administrative decisions (judicial review) act 1977 (adjr act) to review decision of respondent objection to competency of application whether decision open to review meaning of 'decision' under adjr act whether substantive determination whether applicant has standing to bring application administrative law |
2 CSL carries on business developing, manufacturing, selling and supplying in Australia plasma products, antivenoms and human vaccines. GSKA markets throughout Australia a range of pharmaceutical products including vaccines. 3 The products at the centre of this dispute are vaccines used for the prevention of infection caused by Human Papillomavirus ("HPV"). More particularly, they are vaccines which are administered to prevent certain types of cancer. It is, at present, the only such vaccine approved in Australia. It prevents cervical cancer and other HPV related cancers and diseases caused by HPV types 6, 11, 16 and 18. It was developed following collaboration between CSL and Professor Ian Frazer, who is well-known for his groundbreaking research in this area, and was named Australian of the Year in 2006. The vaccine has achieved widespread recognition. 5 In 1995, CSL granted an exclusive worldwide licence of its proprietary technology to Merck & Co., Inc. which conducted substantial research leading to the development of GARDASIL. On 14 December 2005, Merck Sharp & Dohme (Australia) Pty Ltd lodged an application with the Therapeutic Goods Authority ("the TGA") for marketing approval for GARDASIL. On 16 June 2006, the TGA granted that approval. The TGA also granted CSL approval to use what is described as the "GARDASIL Product Information Sheet", a document containing technical information regarding the nature and effect of the vaccine. The L1 proteins are produced by separate fermentations in recombinant Saccharomyces cerevisiae CANADE 3C-5 (Strain 1895) and self-assembled into VLPs. The VLPs for each type are purified and adsorbed on aluminum-containing adjuvant (amorphous aluminum hydroxyphosphate sulfate). The quadrivalent HPV VLP vaccine is prepared by combining the adsorbed VLPs of each HPV type, the aluminum-containing adjuvant formulation, and a buffer. Each 0.5-mL dose contains approximately 20 mcg of HPV 6 L1 protein, 40 mcg of HPV 11 L1 protein, 40 mcg of HPV 16 L1 protein, and 20 mcg of HPV 18 L1 protein. The product does not contain a preservative or antibiotics. It is also indicated in males aged 9 to 15 years for the prevention of infection caused by HPV types 6, 11, 16 and 18. It is administered intramuscularly in three separate doses over a period of some months, and a subsequent booster is required some years later. 8 By an agreement effective on 1 May 2006, Merck & Co., Inc. appointed CSL as its exclusive distributor of GARDASIL in Australia. CSL launched GARDASIL officially on 28 August 2006. The launch was accompanied by substantial marketing activity which included advertising in medical journals, mail-outs to healthcare practitioners, media releases and conference presentations. The evidence is that the market in Australia for a vaccine of this nature is substantial. 9 In or about March 2006, GSKA applied to the TGA for approval to market its vaccine for the prevention of cervical cancer. However, to date that vaccine, CERVARIX, has not been approved by the TGA for any indication. It appears that marketing approval is not imminent, but GSKA's application is likely to be reviewed "within the first half of 2007". 10 It is necessary to say something briefly about HPV and cervical cancer. It is common ground between the parties that HPV is both a common and contagious virus which is usually transmitted by sexual contact and is a cause of, amongst other things, cervical cancer in women. Approximately 75 per cent of the adult population, male and female, will be infected by HPV at some stage during their lifetime. In most cases, the human immune system will eliminate the infection. However, if it persists over time, it has the potential to cause precancerous cervical lesions and ultimately cervical cancer. 11 Cervical cancer is the second most common cancer in women worldwide. In Australia it accounts for some 230 deaths and 800 new cases per year notwithstanding Papanicolaou (pap) smear screening programs. 12 HPV is also said to be responsible for less common cancers, including up to 50 per cent of cases of vulvar cancer and 60 to 65 per cent of vaginal cancer, as well as approximately 90 per cent of cases of genital warts. 13 There are more than 100 strains of HPV. Several of those cause cervical cancer or precancerous lesions. The strains of HPV principally implicated in cervical cancer are HPV types 16 and 18. These types are responsible for approximately 70 per cent of all cervical cancer in women worldwide. 14 HPV types 31 and 45 are also associated with cervical cancer. 15 HPV types 6 and 11 are responsible for 90 per cent of cases of genital warts. 16 Pharmaceutical products, including vaccines, may not be imported into, manufactured or supplied in Australia unless they have been entered in the Australian Register of Therapeutic Goods ("the ARTG"). An application for regulatory approval must include a dossier of chemical, pre-clinical and clinical data relating to the production, safety and efficacy of the product. This data is reviewed by the TGA and the Australian Drug Evaluation Committee ("the ADEC"). That review determines the proposed "indications" for use. 17 In order to gain marketing approval a product information sheet, which defines the indications for the pharmaceutical product, must also be approved. Section 21B(3) of the Therapeutic Goods Act 1989 (Cth) prohibits a person from representing that therapeutic goods that are not included in the ARTG are so included. Although CSL at one point alleged that GSKA had contravened this provision, it did not rely upon any such contention in support of its application for interlocutory relief. That activity, which was undertaken by a market research organisation known as Australian Fieldwork Solutions, consisted of contacting general practitioners by telephone to ascertain whether they were interested in participating, for a fee, in market research on cervical cancer vaccines, and if so sending by facsimile an information sheet containing comparative information on GARDASIL and CERVARIX ("the GSKA Information Sheet"). Subsequently the general practitioner would again be contacted by telephone, and interviewed. 19 The GSKA Information Sheet was a two page document containing some background information describing the impact and cause of cervical cancer, and particularly its links with HPV. It emphasised the importance of regular pap smears as early detection tools, and the need for regular screening. None of this was in any way contentious. 20 However, the GSKA Information Sheet went on to deal, in a comparative way, with GARDASIL and CERVARIX. It stated that there were two companies developing a vaccine that would offer protection against HPV types 16 and 18 -- the two key cervical cancer causing types. It said that women would be able to choose which of the two vaccines they preferred. It observed that it was anticipated that the government would fund a free vaccination program for girls at school while for other women there would be two vaccines available from their general practitioner to be paid for privately, each costing around $400 per course of three injections. It added that both vaccines were expected to give at least 10 years protection before any boosters were required. This adjuvant has been used in the formulation of many vaccines and has been proven to be effective and well tolerated. The most common reactions observed after vaccine administration were injection site reactions including pain, redness, swelling and fatigue. The most common reactions observed after vaccine administration were injection site reactions including pain, redness, swelling and fatigue. It also does not provide a full or final representation relating to these vaccines and their features. This is, however, all true and accurate information. CSL further claims that those general practitioners who received the GSKA Information Sheet would understand it to be saying that CERVARIX was a superior vaccine to GARDASIL because it offered greater benefits. 24 The evidence is that the GSKA Information Sheet was distributed to at least 300 general practitioners. There is also evidence that some time after these information sheets were provided, the general practitioners were interviewed by telephone. They were asked whether, on the basis of the GSKA Information Sheet provided, they would be prepared to prescribe one vaccine in preference to the other, and what price differential they would be prepared to pay in order to secure the benefits that one vaccine offered over the other. CSL claims that the questions were "loaded" in such a way as to suggest that CERVARIX offered clinical benefits that GARDASIL did not. 25 In particular, CSL contends that the information sheet in combination with the loaded interview would be likely to have left general practitioners with the impression that CERVARIX provided a longer period of protection than GARDASIL, and that it provided what CSL described as "cross-protection". CSL also complains that the general practitioners were not told that GARDASIL had been approved for the vaccination of males aged 9 to 15 years, a feature that CERVARIX did not share. 30 The effect of these undertakings is, as CSL acknowledged, to obviate the need to consider the representations pleaded in paragraphs 10(b), (c) and (e) of the Statement of Claim. However, there remains an issue as to whether there is a serious question to be tried with regard to the misleading or deceptive nature of the representations pleaded in paragraphs 10(a), (d), (f), (g), (h), (i), (j) and (k). CSL further contends that the information sheet failed to disclose GSKA's involvement in its preparation. To the extent that it asserted that it did "not represent an official statement by any company", but contained "all true and accurate information" it implied that it was not GSKA's document. That representation, CSL contends, was false. 32 GSKA contends that there is no serious question to be tried in relation to representation 10(a). It denies that any representation of the kind pleaded was made. 33 I am prepared to accept that there is a serious question to be tried in relation to this representation. However, I think it unlikely that any general practitioner, who read the GSKA Information Sheet with care, would conclude that it was independently prepared, rather than being prepared by or on behalf of GSKA. The GSKA Information Sheet must be read as a whole, and against the background of it having been provided in response to an approach by a market research organisation that was prepared to pay general practitioners a fee for reading it, and participating in an interview. This had all the hallmarks of an advertising exercise, and the comparison drawn in favour of CERVARIX made it likely that the information sheet was part of that exercise. It argues that the term "indicated" has a special meaning in relation to pharmaceutical products, suggesting that any product to which it applies has received TGA approval. It submits that general practitioners would understand the term in that way. 35 GSKA submits that the term "indicates" has a broader meaning, and is not to be understood as suggesting that a product has TGA approval. GSKA refers to the medical dictionary definition of the term which encompasses this broader meaning, and suggests simply that that product is apt for the particular use. 36 I am satisfied that there is a serious question to be tried as to whether the particular representation pleaded is contained in the GSKA Information Sheet. I am also satisfied that there is a serious question to be tried as to whether that representation is false. It notes that the GSKA Information Sheet states that CERVARIX is the only vaccine to have shown evidence of additional cervical cancer coverage due to protection against two other cancer-causing HPV type infections (HPV 31 and 45). The GSKA Information Sheet goes on to say that due to the protection against these two additional strains of HPV, CERVARIX could potentially increase protection against cervical cancer from 70 per cent to 80 per cent of all cervical cancers. The inclusion of the academic reference "Harper et al, 2006" is intended to reinforce that claim. 40 However, CSL contends that there is no proper scientific basis for these representations. It says that GSKA's methodology for measuring the efficacy of its vaccine overlooks the role that the human body's immune system plays in the self-elimination of the HPV infection. This is because 70 to 90 per cent of HPV infections are cleared spontaneously by the body's immune system within 36 months. HPV infection does not progress to cervical cancer unless the infection persists. Because most HPV infections are transient, a reduction in incident infection cannot be equated with additional cancer protection. Incident infection is therefore an inadequate endpoint against which to test HPV vaccine efficacy. 41 CSL further contends that the Harper paper does not support the claim made in the GSKA Information Sheet. The argument is somewhat technical, and need not be addressed at this stage. 42 Finally, CSL contends that GARDASIL has shown evidence of cross-protection against cervical cancers induced by HPV types 31 and 45. However, CSL, acting responsibly, has not made any claims in relation to these HPV strains because they require further assessment which must be based on disease endpoints. 43 GSKA submits that the representations in question were true, or at least based upon sound scientific opinion. It relied upon expert evidence of its own to support that contention. 44 In my view, there is a serious question to be tried as to whether representations 10(f), (g) and (h) are misleading or deceptive. The dispute between the scientists on this point cannot be resolved on an application for interlocutory relief in which no deponent was cross-examined, and no proper analysis of the scientific opinions expressed in the various affidavits filed was undertaken. That task must await the final hearing of this matter. CERVARIX, on the other hand, is described as having been formulated using "next generation vaccine technology (adjuvant AS04)" which "induces a stronger immune response than the same vaccine formulated in the traditional way with an aluminium way with an aluminium adjuvant". 46 CSL comments that it is unusual for adjuvants to be discussed with general practitioners or referred to in promotional materials. The use of terms such as "next generation" in contrast to "traditional way" was calculated to leave doctors in no doubt as to the greater strength and longer lasting immune response of CERVARIX in comparison to GARDASIL. In addition, the GSKA Information Sheet refers to a study by "Giannini, 2005" in support of its claim regarding the superiority of its adjuvant. The plain implication of all this is said to be that CERVARIX provides longer protection than GARDASIL. 47 CSL contends that the comparative statements regarding the adjuvants used in each product are misleading because the aluminium adjuvant used in GARDASIL is quite different to what is commonly regarded as the traditional aluminium adjuvant reported in the Giannini paper. Without going too deeply into scientific issues, CSL says that the adjuvant used in the Giannini study was aluminium hydroxide. GARDASIL, on the other hand, is said to use an amorphous aluminium hydroxyphosphate sulphate adjuvant. 48 It is impossible, on an interlocutory application, to resolve a scientific dispute of this nature. It is sufficient simply to say that there are conflicting views about the accuracy of the representation contained in paragraph 10(i) of the Statement of Claim. That means there is a serious question to be tried regarding this issue. However, without further evidence, the Court is not in a position to determine how strong that serious question might be. It refers to the GARDASIL Product Information Sheet, which contained TGA approval of the statement that GARDASIL was indicated in females aged 9 to 26 years for the prevention of vulvar and vaginal cancer caused by HPV types 6, 11, 16 and 18. The clinical studies on which that indication was based established that GARDASIL was 100 per cent effective against HPV types 16 and 18 infections, and therefore the word "may" ought not to have been used in the GSKA Information Sheet. 50 GSKA submits that CSL itself used the term "may" on its website in reference to the protection available against these infections. 51 There is a serious question to be tried regarding this issue. That fact is important both clinically and commercially because HPV infects both males and females. It is sexually transmitted and so vaccination protects males from infections and subsequent transmission to their sexual partners. Vaccination also protects males from genital warts, and some rarer cases of penile and anal cancers. In addition, there were no clinical trials published that could support CERVARIX being granted marketing approval for use to prevent HPV infection in boys. 53 In substance, CSL contends that the GSKA Information Sheet, and the interviews conducted with the general practitioners were designed to establish the comparative attractiveness of CERVARIX over GARDASIL, and the price differential that doctors would be prepared to pay to secure the benefits of one vaccine over another. In that comparative context, CSL contends that it was misleading for GSKA to omit any reference to the fact that GARDASIL was indicated for use in boys. 54 GSKA submits in reply that the evidence raises doubts as to whether vaccinating males would be as effective in preventing HPV infection as it is in females, and that it is not clear that male vaccination would reduce transmission of HPV infection from males to females. 55 There must be some doubt as to whether GSKA, in preparing a comparative analysis of the two vaccines, was required to espouse a particular attribute of GARDASIL that CERVARIX may not possess. Nonetheless, I am satisfied that there is a serious question to be tried as to the misleading or deceptive nature of GSKA's omission in the GSKA Information Sheet. In R Meagher, D Heydon and M Leeming, Meagher, Gummow & Lehane's Equity Doctrines & Remedies (2002, 4 th ed), the learned authors suggest (at [21-345]) that this requirement applies only where an interlocutory injunction is sought in the auxiliary jurisdiction of a court of equity, and not if the injunction is sought in the exclusive jurisdiction. It is further suggested that injunctions in the common law jurisdiction need not be saddled with this requirement. 57 There has been some debate among commentators as to whether an applicant for an interlocutory injunction is required to establish not merely that there is a serious question to be tried and that the balance of convenience favours the grant of such relief, the two conditions that are universally accepted, but also that, without an injunction, he or she will suffer injury for which damages will not be adequate compensation. In other words, the question is whether an applicant must overcome three separate hurdles rather than two. 58 The recent decision of the High Court in Australian Broadcasting Corporation v O'Neill [2006] HCA 46 clarifies this issue. Her Honour cited the well-known passage from the judgment of Mason ACJ in Castlemaine Tooheys Ltd v South Australia [1986] HCA 58 ; (1986) 161 CLR 148 (at 153) as support for that proposition. 60 GSKA submitted that CSL had not shown that it would suffer injury for which damages would not be an adequate remedy if interlocutory relief were refused. It noted that the "market research project" for which the GSKA Information Sheet was prepared had been completed. 61 CSL responded by noting that, although GSKA had proffered an undertaking not to further distribute the GSKA Information Sheet, it had not undertaken to cease "market research" per se in relation to CERVARIX. This meant that CSL had no protection against the risk that the representations contained in the GSKA Information Sheet would not be repeated in circumstances that were outside the "market research project". It also meant that unless an interlocutory injunction were granted, CSL would not be protected against representations designed to convey to general practitioners and other health professionals that CERVARIX is a superior vaccine to GARDASIL. 62 CSL also relied upon evidence that GSKA was making damaging and, it was submitted, inaccurate comparisons regarding the two vaccines which did not form part of any "market research project". A number of medical practices around Australia had reported to CSL that GSKA was engaged in marketing CERVARIX by representing that it was more comprehensive in its coverage than GARDASIL, covering 80 per cent of cervical cancer while GARDASIL covered only 70 per cent, and that GARDASIL's indication for genital warts was "inconsequential". CSL claimed that GSKA representatives would, in all likelihood, approach tender coordinators for the respective State purchasing boards responsible for implementing any public immunisation scheme. It also claimed that GSKA had made it clear that it proposed to engage in a variety of pre-launch activities, as well as communications with the TGA. 63 According to CSL this meant that there was an unacceptable risk that GSKA would continue to engage in direct comparisons between GARDASIL and CERVARIX which involved representations which were wrong and not supported by scientific evidence. CSL had requested GSKA to desist from the conduct in relation to which CSL complained. GSKA had refused to do so. 64 GSKA, in its written submissions, did not deal directly with the issue of irreparable harm. It addressed that question more generally under the ambit of balance of convenience. On behalf of CSL, Dr John Anderson, its Director, Sales & Marketing of its Pharmaceuticals Division swore two affidavits dated 11 September 2006 and 18 September 2006 respectively. In an affidavit sworn on 21 September 2006, David Herd, GSKA's Director, Regulatory Affairs and Health Outcomes & Pricing responded to Dr Anderson's affidavits. 66 Put simply, Dr Anderson claimed that the GSKA Information Sheet, and follow-up interviews, represented CERVARIX was superior to GARDASIL, and did so in a manner that was misleading or deceptive. He said that, based upon his experience of the conduct of genuine market research, and the numerous errors in the information distributed by GSKA, he considered that GSKA had attempted to create "fear, uncertainty and doubt" about GARDASIL in order to reduce market confidence in that product. He said that this was a well-known marketing tactic known as "FUD". 67 Dr Anderson observed that as GARDASIL was the only vaccine currently approved by the TGA, it was the only vaccine that the Pharmaceutical Benefits Advisory Committee ("the PBAC") could presently assess for the proposed mass immunisation program for prevention of cervical cancer. He spoke of the potential size of the market for GARDASIL in Australia, and the maximum sales that might be realised if every eligible female and male received the full three course dosage at the full price. The figure equated to a staggering $1.2 billion. 68 Dr Anderson noted that the PBAC was currently considering CSL's proposal to conduct annual national vaccination of 12 year old girls, and a catch-up program for girls and women aged 13 to 26 years. He said that he was concerned that if the conduct complained of was not stopped immediately, and steps taken to correct the misinformation previously put out by GSKA, that misinformation could be conveyed to members of the PBAC and influence its decision. He said the misleading information could also influence federal cabinet to delay funding of GARDASIL until CERVARIX became available if they believed GSKA's claims that CERVARIX might be a better vaccine. He said that he was also concerned that State and Territory decision-makers, with inadequate scientific knowledge or experience, might be influenced in relation to the assessment of tenders by the dissemination of such information. 69 Dr Anderson said that it was highly likely that misinformation of this nature could spread rapidly within the medical community. He noted that the issue had also received substantial media coverage as a result of the GARDASIL launch activities and the high profile of Professor Frazer's work. He said that he believed that the only way the damage being suffered by CSL could be reduced is if GSKA were immediately restrained from repeating the representations that are the subject of this proceeding. 70 In his second affidavit, Dr Anderson elaborated upon the short-term damage to CSL from GSKA's conduct. He pointed out that CSL's sales representatives were encountering difficulty in their dealings with general practitioners because they were being diverted from speaking about GARDASIL, and compelled to respond to the misleading claims made about CERVARIX. He gave some examples of this. 71 Mr Herd replied by noting firstly that GSKA had, since March 2006, been engaged in dealing with the TGA in support of its application for registration of CERVARIX. He understood that that application would be reviewed at a meeting of the ADEC in the first half of 2007. 72 Mr Herd said that he was responsible for developing GSKA's reimbursement strategy for submission to the PBAC. He rejected Dr Anderson's claim that the PBAC would be influenced by representations of the kind contained in the GSKA Information Sheet. He noted the PBAC was an independent body set up by statute, and that its members included medical practitioners and pharmacists. He referred to the PBAC's guidelines on preparation of submissions and said that it was well understood that the PBAC made its decisions independently of any external influences, and on the basis of scientific and medical data presented to it by applicants. He noted that it was recognised within the pharmaceutical industry that it was improper for pharmaceutical companies to approach individual members of the PBAC and its various sub-committees to seek to influence its decision making process with regard to specific applications. He said that GSKA was careful to ensure that it complied strictly with these guidelines when making any application to the PBAC. 73 Mr Herd also challenged Dr Anderson's claims regarding the harm that CSL might suffer with regard to CSL's application for public funding of GARDASIL on the National Immunisation Program ("the NIP"). He noted that funding was allocated to States and Territories to manage the implementation of that program, and that each State ran separate tenders through a specially appointed tender board to determine which vaccine should be selected for provision through the NIP. He said that the GSKA Information Sheet, and the representations contained therein would have no impact or affect on CSL's application for such funding. 74 Mr Herd said that GSKA would itself suffer irreparable harm if interlocutory relief were granted to CSL. He emphasised the need for GSKA to be able to communicate with the TGA fully regarding CERVARIX while the review process was being conducted. He noted that if the TGA came to the view that there were significant clinical advantages offered by CERVARIX, compared to GARDASIL, GSKA would be inhibited in being able to communicate or otherwise discuss such matters. These would delay GSKA's ability to apply for public funding of CERVARIX through the NIP, and its ability to supply CERVARIX to that section of the Australian population for which the TGA might decide to indicate the product. In particular, if the data submitted by GSKA to the TGA were accepted, Australian women over 26 years of age would be denied the opportunity to obtain access to CERVARIX. GARDASIL would be unavailable to this section of the population as it was only indicated for women aged 9 to 26 years. 76 First, its marketing launch of GARDASIL is being, and would continue to be, substantially disrupted. GSKA's conduct was said to be diluting CSL's marketing advantage arising out of the "head start" it had achieved through being the first to market its unique vaccine. CSL claimed that it was being forced to divert its sales resources in order to correct the misinformation being disseminated by GSKA. 77 Second, CSL would lose sales of GARDASIL that would otherwise be made as general practitioners put off their decision to prescribe vaccine until CERVARIX came onto the market. In that context it was important to remember that these products were vaccines, and not treatments for existing illnesses. According to CSL it would be impossible to tell whether sales which had been lost or postponed were lost or postponed as a result of GSKA's representations, or for other reasons. 78 Third, there was a risk that tender coordinators, who would be responsible for very large orders if a public immunisation program were implemented, would be unfairly prejudiced against GARDASIL on the basis of inaccurate or incomplete information. CSL argued that the tender coordinators, their public servant assistants and the members of any purchasing boards would not be well placed to analyse detailed scientific submissions. Many of them may not even be medically qualified. 79 According to CSL the damage that it would suffer from each of these types of harm would not be calculable. Such irreparable harm would be suffered even if the time between the hearing of this interlocutory application and the final trial were truncated. CSL noted that apart from the 300 or so general practitioners who had participated in the "market research project" there were approximately 18,000 general practitioners in Australia of whom 12,000 or so actively worked in clinical practice. Misinformation of the kind sought to be enjoined was likely to spread quickly within the medical community. 80 CSL argued that there would be no harm to GSKA if it were restrained until trial from making any representation in Australia that CERVARIX offered or possessed cross-protection against cervical cancer, or that it was more effective and offered longer protection than GARDASIL. That was because until such time as the TGA approved the marketing of CERVARIX, GSKA could not sell or supply its product. In any event, GSKA was free to legitimately "market" CERVARIX in Australia. CSL sought only to restrain GSKA from unfairly and inaccurately comparing CERVARIX to GARDASIL. 81 CSL expressly disavowed any intention of restraining GSKA from communicating with the TGA about CERVARIX in relation to matters that might arise during the prosecution of GSKA's application for marketing approval. 82 GSKA noted that the undertakings sought by CSL, in place of those proffered by GSKA, were in far broader terms even than the interlocutory and final relief sought in CSL's application. GSKA noted that the "market research project" about which CSL complained had been completed by mid-July 2006. It submitted that it was highly unlikely that the GSKA Information Sheet had been retained, or disseminated by the general practitioners to whom it was provided. Moreover, GSKA had undertaken, until trial or further order, not to further distribute the GSKA Information Sheet. 83 GSKA submitted that interlocutory relief should be refused by reason of delay. It noted that a period of 10 weeks had elapsed from the time that CSL first learned of the GSKA conduct of which it now complained until it commenced this proceeding. 84 GSKA next submitted that it was an important factor when considering the balance of convenience that the trial of this matter could be heard within a very short time. In fact, the Court indicated that the application for final relief could be heard in mid-November 2006, a delay of less than two months. According to GSKA, the fact that a speedy trial could be held meant that there was less justification for the grant of interlocutory relief. 85 GSKA further submitted that CSL had grossly overstated the damage that it claimed it would suffer if no interlocutory relief were granted. CSL's assertion that its sales force was "not able to function optimally or effectively" in the absence of injunctive relief was not supported by the evidence. Only a handful of CSL sales representatives engaged in promoting GARDASIL had had any contact with doctors who had spoken to GSKA representatives about CERVARIX. There was nothing to suggest that any irreparable harm had been done by anything said to any doctor by a GSKA representative. 86 GSKA challenged CSL's contention that the members of the PBAC were likely to be swayed in their decision whether to recommend the inclusion of GARDASIL in the Pharmaceutical Benefits Scheme by a two page information sheet used in a telephone survey of general practitioners. The same was said to apply to members of the State tender bodies for the NIP. 87 GSKA also noted that CSL had engaged in a massive marketing campaign in relation to GARDASIL. This included two separate mail-outs to almost 20,000 general practitioners in Australia, advertisements in various journals, presentations at conferences and press releases. It submitted that it was inconceivable that a publicity exercise of this magnitude could be irreparably harmed in the few weeks prior to the trial of this matter given the cessation of the conduct complained of, and the negligible evidence of short-term harm that CSL had provided. 88 Finally, GSKA contended that it would suffer significant and irreparable harm if it were restrained from carrying out the preparatory work leading up to the marketing of CERVARIX pending the trial of this matter. It submitted that both CSL and GSKA engaged in extensive activities gearing up to the approval and launch of a new drug product. These included corresponding with various regulatory bodies, such as the TGA, the PBAC and various State tender bodies for immunisation programs, attending conferences and symposia, preparing for distribution post-approval educational material, and responding to inquiries from interested persons. 89 GSKA noted that its application for registration for CERVARIX was currently before the TGA. Following the extensive publicity that had been given to GARDASIL since its launch, GSKA had received a number of queries regarding CERVARIX. It had representatives attending three medical conferences in the period between mid-October and mid-November 2006. It submitted that CSL, by bringing this proceeding, was seeking to secure a monopoly in Australia for the supply and sale of GARDASIL to which it was not entitled by excluding GSKA from the relevant market for as long as possible. It submitted that in circumstances where it had proffered undertakings and agreed to a speedy trial and where there was no evidence of any real irreparable harm to CSL, the balance of convenience favoured the refusal of interlocutory relief. That is, what CSL seeks is an injunction to prevent or restrain an apprehended or threatened wrong which would result in substantial damage if committed. 93 In quia timet proceedings, the court will have regard to the degree of probability of the apprehended injury, the degree of the seriousness of the injury, and the requirements of justice between the parties. The fact that there is no breach presently occurring may make it more difficult, as a matter of evidence, to establish that there is a sufficient risk of a future injury to justify the immediate grant of an injunction. If, in all the circumstances, the likelihood that an injury will take place is not sufficiently high, quia timet relief will be refused. The applicant will be left either to avail him or herself of such other remedies as may be open, or else to renew his or her application should the likelihood of an injury subsequently increase sufficiently to render equitable intervention appropriate. 95 There is some debate as to whether a greater degree of proof is required in a case involving interlocutory quia timet relief than in a case involving a different kind of injunction. The issue is discussed in Meagher, Gummow & Lehane (at [21-395]), and need not be further canvassed here. It is sufficient to note that, in many cases, it may be more difficult to prove that an apprehended injury will occur than it is to prove that an existing injury will continue. 96 I have already indicated that I am satisfied that there is a serious question to be tried in relation to representations 10(a), (d), (f), (g), (h), (i), (j) and (k) as pleaded in CSL's Statement of Claim. The allegations relating to some of those representations appear to me to be stronger than those relating to others. However, nothing of any consequence turns upon this for the purposes of this interlocutory application. 97 I am prepared to proceed upon the basis that CSL will suffer some harm if these representations, assuming they are false, are repeated between now and mid-November, when the final hearing of this matter will take place. It may be, as CSL contends, that damages will not be an adequate remedy for such harm. That means that CSL has overcome the first two hurdles that it must meet in order to obtain the interlocutory relief that it seeks. 98 However, CSL must still overcome the third hurdle, and demonstrate that the balance of convenience favours the grant of the injunction sought. It is common ground that CSL carries the onus on this issue. 99 The real question in this proceeding, as in many similar cases, is where does the balance of convenience lie? In that regard, I am inclined to the view that each side has overstated its case in relation to this matter. 100 CSL's evidence that its sales representatives are being diverted from extolling the virtues of GARDASIL to general practitioners by being forced to defend that product from GSKA's claims regarding CERVARIX seems to me to have been extremely tenuous. The fact that CERVARIX may be available for sale in 2007 would be likely, of itself, to raise questions in the minds of general practitioners about the respective merits of the two products. That is so irrespective of the representations contained in the GSKA Information Sheet. 101 With regard to other impending harm, it seems to me to be improbable that GSKA's representations, as contained in its information sheet, would be likely to influence the deliberations of Federal Cabinet. The risk that the PBAC might be influenced by those representations is significantly reduced by the fact that CERVARIX will not be approved by the TGA this year. The PBAC is unlikely to make any final decisions regarding CERVARIX while TGA approval is still pending for that product. CSL's claims for final injunctive relief will have been determined long before the TGA has completed its review. 102 GSKA's evidence as to the harm that it would suffer if it were temporarily restrained from repeating the representations that were made in its information sheet seems to me also to have been overstated. For one thing, CSL made it plain at the hearing, if it was not already clear, that it was not seeking to prevent GSKA from making whatever claims it wished to the TGA about CERVARIX, as part of GSKA's ongoing application for approval. That made some of the evidence upon which GSKA relied redundant. 103 In addition, the fact that GSKA might be forced, for a relatively short period, to refrain from engaging in comparisons between GARDASIL and CERVARIX of the type contained in the GSKA Information Sheet hardly seems to me to have the serious consequences for GSKA, and its marketing plans, that Mr Herd foreshadowed. 104 Although, I accept that damages would not be an adequate remedy if CSL were to succeed in establishing the various breaches of s 52 of the Trade Practices Act that it alleges, the same is probably true for GSKA in relation to the utility of any undertaking as to damages given by CSL. 105 After weighing the evidence carefully, I am not persuaded that the balance of convenience favours the grant of interlocutory relief. I accept that the submissions on this issue are finely balanced. The fact that there will be a speedy trial and early resolution of CSL's claim for final relief seems to me to tilt the balance in favour of GSKA. If CSL's claim is accepted, GSKA will be enjoined from making representations of the kind impugned well before the TGA has completed its review of CERVARIX. That means that neither the PBAC, nor the State tender bodies are likely to be influenced by those representations. Any other harm that CSL might suffer between now and the trial is speculative, and not of sufficient gravity to warrant imposing restrictions upon GSKA's own marketing endeavours. That is particularly so given that any injunction would necessarily require GSKA, acting prudently, to adopt a conservative approach to what its many employees might say about its product, and effectively stymie legitimate competitive activity. 106 Had it not been for the fact that there will be a speedy trial of this matter, which Stone J regarded as a relevant consideration in Hexal v Roche (at [78]), I might have been inclined to grant some, at least, of the orders sought by CSL. 107 I will give the parties an opportunity to be heard in relation to the matter of costs. Caine SC and Dr W.A. Collinson SC and Ms H.M.J. | interlocutory injunction quia timet injunction whether serious question to be tried whether applicant likely to suffer injury for which damages will not be an adequate remedy whether balance of convenience favours the granting of injunction alleged contravention of s 52 of trade practices act 1974 (cth) practice and procedure |
The issue is whether the Federal Magistrate erred in not being satisfied that that there was "other sufficient cause" so that a sequestration order ought not to be made within the meaning of s 52(2)(b) of the Bankruptcy Act 1966 (Cth). Mr Field does not challenge his indebtedness, nor an act of bankruptcy arising upon non-compliance with a bankruptcy notice which was served on 26 November 2007. He concedes that the Bank has established a prima facie entitlement to the making of a sequestration order. However, he invites the Court to exercise its discretion to decline to do this on the ground that it may be satisfied "that for other sufficient cause a sequestration order ought not to be made" within s.52(2)(b) of the Bankruptcy Act 1966 (Cth). This is because he has commenced Federal Court and Supreme Court proceedings claiming damages and other relief against the Bank and other parties, which, if successful, will enable him to pay the Bank or avoid his liability to it. He submits that, if the Court is not satisfied that the litigation has sufficient prospects of success, he at least has real claims which would justify a lengthy adjournment of the petition until their prospects become clearer. Nor does he contest certain primary facts on which the respondent, St George Bank Limited ( St George ), relied. Hence, it was common ground that Mr Field was the sole director of Jenolan Caves Resort Pty Ltd ( JCR ). JCR's main business related to the revival of the Jenolan Caves Guest House as a tourist location. JCR had the benefit of a lease from the Jenolan Caves Reserve Trust ( the Trust ), an instrumentality of the New South Wales government. On 8 May 1997 Mr Field gave a guarantee to St George for all moneys owing by JCR to St George including a one year facility of $5.88 million advanced by St George in May 2004. The terms of the guarantee describe it as unconditional and irrevocable, requiring payment on demand. Mr Field must not delay payment for any reason, with payment to be made in full without any deduction. The guarantee includes a waiver by Mr Field of "all rights of set off, combination or counterclaim in relation to payment" of the guaranteed moneys (cll 3.1 and 3.2). The guarantee also provides that Mr Field's obligations and liabilities are not affected by such matters as laches, acquiescence, delay, acts or omissions by St George or another person (cl 5.2.1). JCR's operations reached a financial crisis point in 2005. On 9 December 2005 St George appointed managers and receivers to JCR. The receivers purported to transfer the lease and assets of JCR to the Trust pursuant to a deed dated 30 June 2006 ( the Jenolan Deed ). In the interim, St George had made a demand under the guarantee on 8 June 2006, after it determined that recovery from JCR would be insufficient to satisfy the debt. These events culminated in a judgment of the Supreme Court against Mr Field on 8 August 2007 for the sum of $6,800,632.72 ( St George Bank Limited v Archer Phillip Field [2007] NSWSC 902). On 26 November 2007 a bankruptcy notice was served on Mr Field. On 13 December 2007, Mr Field filed an application in the Federal Magistrate's Court to set aside the bankruptcy notice. However, an acknowledged act of bankruptcy occurred on 13 May 2008, when Mr Field consented to orders in the Federal Magistrates Court dismissing his application to set aside a bankruptcy notice served on him on 26 November 2007. Mr Field remains indebted to St George under the guarantee in the sum of $6,800,632.72. On 5 November 2008 St George filed a creditor's petition in the Federal Magistrates Court seeking a sequestration order under s 43 of the Bankruptcy Act against Mr Field's estate. Mr Field filed a notice opposing the grant of the petition on 31 March 2009. The Federal Magistrates Court granted the creditor's petition and dismissed Mr Field's notice of opposition in its decision published on 10 June 2009. Mr Field filed a notice of an appeal in this Court against the decision of the Federal Magistrates Court on 17 June 2009. By his notice of appeal Mr Field contends that the Federal Magistrates Court erred in failing to dismiss or adjourn the creditor's petition until resolution of another proceeding, being proceeding no. NSD9/2009 in this Court ( the Federal Court proceeding ). The notice of appeal puts this contention of error in various ways. (2) Grounds 7, 12 and 13 relate to the way in which the Federal Magistrates Court dealt with aspects of proceedings no. 50053/2007 in the Supreme Court of New South Wales ( the Supreme Court proceedings ), that is the proceedings which resulted in the judgment against Mr Field of 8 August 2007, referred to at [6] above. (3) Ground 16 relates to the Federal Magistrates Court's conclusions about the immateriality of the Jenolan Deed. (4) Ground 6 alleges an error by the Federal Magistrates Court in refusing to admit into evidence the appellant's affidavit sworn 20 May 2009. (5) Ground 17 alleges an error by the Federal Magistrates Court in placing weight on evidence described as "self serving assertions and conclusions of the receivers and managers of [JCR]". In other words, Mr Field accepted (and continues to accept) that St George had proved each of the matters required by s 52(1) and thus established a prima facie entitlement to the sequestration order (being, the matters stated in the petition, service of the petition and the fact that the debt or debts on which the petitioning creditor relies is or are still owing). The Federal Magistrates Court summarised the background to the pending litigation in [2]-[20]. He cited judgments in which courts give such clauses their full effect, at least where there is no challenge to the making of the guarantee. He noted at [18] of his judgment that none of Mr Field's contentions asserted that "the taking of the guarantee was itself affected by some vitiating circumstances" , and that Mr Field only sought to attack the exercise of rights under it. He said: "In my view that is the kind of exercise prohibited by the terms of the guarantee which terms, as I have said, are to be enforced according to their wording" . He said that they also precluded claims for equitable waste in the exercise of mortgagee powers being relied upon by way of defence. However, he observed that "the giving of judgment in favour of St George would not create any estoppel preventing Mr Field from raising any cross-claim that might be maintainable". Relief is sought by way of declarations that the Jenolan Deed "was invalid, null and void " due to an invalid appointment of the person who executed it on behalf of the Trust. It seeks consequential orders for accounts and "re-transfer" to JCR of "the leasehold interest the subject" of the registered transfer. I note that it does not clearly address Mr Field's locus standi to seek this relief, and the effect of JCR being under liquidation. I also note that it does not attempt to litigate whether an agency of NSW was or is liable in damages to JCR or to Mr Field for the previously alleged defaults by the Trust in relation to the provision of services and amenities to the hotel. There is no evidence before me as to the defences which have been or are expected to be filed by the defendants, and the proceedings appear at present to be awaiting directions as to their future case management. The statement of claim requests an order for expedition of the hearing, but there is no evidence that this has been pressed by Mr Field, nor granted by the Supreme Court. The pleading recites the asserted invalid appointment of the Trust administrator in 2004, and some of the events of 2005 and 2006. It claims that the Bank is liable to Mr Field for relief under the Trade Practices Act and other legislation, for its failure to "use its influence and connections with the New South Wales government to facilitate a resolution of" a deadlock in JCR's negotiations with the government, and for the subsequent appointment of the receivers and their sale of JCR's assets at an undervalue. It seeks a declaration discharging Mr Field from his obligations under the guarantee, without clearly revealing an answer to the points made by McDougall J as to the effect of the waiver provisions in a context where no challenge is made to its making. It also seeks the same relief as is sought in the Supreme Court, setting aside the Jenolan Deed and the transfer, notwithstanding that it does not join any agency of NSW nor explain the duplication of claims, though this might appear oppressive to the Bank. It also seeks damages for Mr Field from the Bank and the Receivers, apparently for their conduct in relation to JCR during 2005 and 2006. However, the legal foundations of the pleading remain obscure in many respects, and its prospects of surviving interlocutory examination unscathed are, in my opinion, not good. Although it also seeks to stay enforcement on the Bank's judgment against Mr Field, there is no evidence that this has been pressed by Mr Field by any urgent interlocutory application. On the evidence before me, this proceeding is also awaiting case management, and there is no evidence as to what defences or interlocutory applications have been filed, or are expected to be filed, by the respondents. In those circumstances the petition should be dismissed or there should be a stay of proceedings until after the disposal of the other proceedings in the Federal Court of Australia and the Supreme Court of New South Wales. It should be examined to assess whether it can be said that there is sufficient evidence to show that it is a real claim which is likely to succeed. Also relevant is the stage of the litigation, the length of time for its vindication and any other relevant matters. It goes without saying that solvency is a relevant consideration. In some circumstances, it may be difficult to assess the likelihood of success of the debtor's claim. All the authorities show that central to the showing of "other sufficient cause" for the purposes of s 52(2)(b) is the question of the prospects of success. The case is not tried in the bankruptcy court, but the material is examined for the purpose alluded to by Gibbs J in [ Re Schmidt; Ex parte Anglewood Pty Ltd (1968) 13 FLC 111]. As Olney J identified in [ Re James; Ex parte Carter Holt Harvey Roofing (Australia) Pty Ltd (No 2) (1994) 51 FCR 14] , if a likelihood of success can be demonstrated, that may justify a refusal of a sequestration order. Alternatively, the circumstances may reveal a claim of a character and nature in which likelihood of success cannot be predicted with accuracy but in the circumstances the petition should be dismissed or an adjournment of the petition should granted: see the approach of Sundberg J in Ling v Commonwealth [1996] FCA 1646 ; (1996) 68 FCR 180 at 195---196, with which Wilcox J and Whitlam J agreed. If the claim is one in which credit of witnesses will be involved, and a debtor sets out the nature and detail of the case and all his or her evidence the debtor may only be able to persuade the bankruptcy court that, if relevant criteria are believed, he or she has good prospects of success. What should be proved, or what is sufficient to be proved, in any given case will depend upon the circumstances. The context in which the issue arises is also important. The discretion involved in s 52(2)(b) is a broad one, and, importantly, it is informed by public interest considerations concerned with the dealing with insolvents. (2) Both proceedings were "far from 'well advanced'". This caused the Federal Magistrate to comment that "[c]ertainly, there is little present prospect that either of these very complex claims could be litigated to a successful completion within the life of this petition, which is due to expire on 7 November 2009". Accordingly, his Honour could "see little prospect that additional merit in the claims will emerge before that date to justify further adjournment under an extension of the petition under s 52(5) ". Further, his Honour noted that "[t]he present pleadings present obvious deficiencies, and will need to be cleaned up and properly particularised, even if an opportunity to improve them survives interlocutory challenges. Mr Field's delay in bringing both sets of litigation until the brink of bankruptcy, and his failure to press for any stays, expedition or other interim orders which recognise the urgency of his predicament, leaves me doubtful of his capacity to achieve any improvement in his prospects of success within the lifetime of the petition, even if it is extended under s 52(5) " (at [25]). (3) His Honour also was "not persuaded that this could be achieved by Mr Field gaining a preliminary hearing in one of the courts on the issue of the validity of the execution of the Jenolan Deed on behalf of the Trust". His Honour observed that "there is no evidence that any application for a separate trial of this issue has been made, nor that it is likely to be granted. Moreover, even if such a ruling were achieved it would not, in my opinion, significantly advance Mr Field's prospects of achieving relief which off-sets his liability to the Bank. His claims for this relief face some major difficulties, and Mr Field's evidence and submissions have not explained to me reasonably arguable solutions" (at [26]). This is because they would appear to have expired by effluxion of time under cl 12.7. His Honour, in [30], explained that the material he had in mind was the report dated 14 August 2006 from PPB chartered accountants, in their capacity as administrators of JCR. It is clear that they closely considered the foundations of Mr Field's claims of very substantial loss arising from the making of the Jenolan Deed. In particular, they examined a valuation report of Messrs Magin and Roberts obtained in 2001 by JCR for financing purposes, upon which Mr Field largely pins his claim that the true value of the lease in 2006 exceeded $11m, rather than the total consideration of $2.350m which reached the receivers. The administrators pointed to substantial reasons for doubting the 2001 valuation, and its continuing weight. The relevant passages in their report are too lengthy for me to extract, but I find their analysis of the various valuations and the history of JCR and its receivership to be strongly persuasive. Moreover, bringing into consideration the other difficulties facing this litigation, I am not persuaded that Mr Field has been able to raise a public interest in allowing the litigation to continue, which outweighs the public interest in allowing Mr Field's creditor to take his estate into bankruptcy administration. I am conscious that he contends that his incurring of the debt to the Bank occurred as a result of its conduct towards JCR during 2005 and 2006 which he is seeking to characterise as unlawful or improper. However, his pending litigation presents such a cloud of uncertainty as to its merits, value, and future progress, that I am unable to characterise it in the terms required under the authorities cited above, both in relation to dismissing a petition or adjourning it. I am left with an impression that the relevant public interests support, rather than otherwise, the vesting in a trustee in bankruptcy of a power to decide, in the interests of all creditors, the future continuance of that litigation. His Honour dismissed Mr Field's Supreme Court Administrative Law List proceeding against the Bank, and also refused to grant Mr Field leave to proceed against JCR in that proceeding. The appropriate course is therefore the first for which St George contends, namely, that the Administrative Law List proceedings as a whole be dismissed as against St George. In my opinion, the orders and reasons of Barrett J support the opinions I have explained above as to the lack of prospects attending both the Supreme Court and Federal Court proceedings. It is important to bear in mind what these expressions connote. In the case of an appeal in the strict sense, the function of the appellate court is to determine whether the decision in question was right or wrong on the evidence and the law as it stood when the decision below was given. Where an appellate tribunal can receive further evidence and its powers are not restricted to making the decision that should have been made at first instance, the appeal is usually described as an appeal by way of re-hearing. An appeal by way of hearing de novo is one in which the matter is heard afresh, and the decision is given on the evidence presented at the appellate hearing: see Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47 ; (2000) 203 CLR 194 at 203 [12] - [13] (" Coal and Allied Operations "). A similar observation was made by the Full Court of this Court in Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833 ; (2001) 117 FCR 424 at [21] . Thus, it has been said that this Court's appellate powers are only exercisable if the appellant can demonstrate that the orders under appeal are the result of some legal, factual or discretionary error: see Abeyesinghe at [4]. It is for the debtor to establish the existence of 'sufficient cause': Cain v Whyte [1933] HCA 6 ; (1933) 48 CLR 639 at 645-646; Ling at 24. He must establish that he has a real claim against the creditor that is likely to succeed. If the Court is satisfied that there is such a claim, and that its quantum is likely to equal or exceed the creditor's claim, it will not make a sequestration order. If the claim is likely to be less than the creditor's claim, the Court will require the debtor, if he is to avoid a sequestration order, to pay the difference between the judgment debt and the amount he is likely to recover on his claim. See Re Player (1962) 19 ABC 277 at 282; Re Schmidt; Ex parte Anglewood Pty Ltd (1968) 13 FLR 111 at 115---116; Ling at 25---26; Commonwealth Bank v McDonald ; [1999] FCA 984. A debtor does not establish a real claim that is likely to succeed merely by producing a statement of claim in an action against the creditor: Re Rivett; Ex parte Edward Fay Ltd (1932) 5 ABC 182 ; Player at 282, or by pointing to the existence of current litigation against the creditor: cf Re Douglas Griggs Engineering Ltd [1963] 1 Ch 19 at 23. While the Court does not try the cross-claim in advance, the debtor must adduce sufficient evidence to show that it is a real claim which is likely to succeed: cf Vogwell v Vogwell (1939) 11 ABC 83 at 88; Player at 282. The Federal Court proceeding directly impugns and, if successful, would effect a discharge from and set aside the guarantee and, thereby, avoid the liability on which the creditor's petition is based. Further, if successful, the Federal Court proceeding would set up a case which would result in a very substantial award of damages to Mr Field. The claims in the Federal Court proceeding, Mr Field said, are based on issues of fact and law about "which there can be no real dispute". According to Mr Field, the Federal Magistrate both misconceived and gave no real or proper consideration to the Federal Court proceeding. The statement of claim is not "obscure" (at [16]). The conclusion that the statement of claim in the Federal Court proceeding did not have good prospects of "surviving interlocutory examination unscathed" (also at [16]) also is unfounded. Contrary to the Federal Magistrate's apparent assumption that Mr Field would have difficulties establishing standing, Mr Field did not need to be a party to a transaction to maintain a claim for damages for misleading and deceptive conduct under either the Trade Practices Act 1974 (Cth) or the Australian Securities and Investment Commission Act 2001 (Cth). Nor can waivers in a guarantee prevent such a claim from being maintained as a person cannot contract out of these statutory protections. In any event, difficulties that might arise in the resolution of a claim are an insufficient reason to prevent Mr Field from litigating the claim. First, the statement of claim does not identify any fact, matter or circumstance in existence at the time of entry into the guarantee which would support a claim that the guarantee is vitiated by reason of some legal, equitable or statutory source of invalidity. Instead, the statement of claim records various events which occurred about eight years after the giving of the guarantee said to give rise to various causes of action. Second, the relationship between the subsequent events about which complaint is made and Mr Field's liability under the guarantee is obscure. The statement of claim does not disclose how the subsequent events are capable of leading to the relief claimed given the waivers in the guarantee. Third, and as the Federal Magistrate observed at [28] and St George noted in its submissions, JCR is not a party to the Federal Court proceeding. But many, possibly most, of the matters about which complaint is made in the statement of claim are complaints which only JCR can make in circumstances where Mr Field has no right or standing to make a claim on JCR's behalf. Mr Field sought to make good this difficulty by pointing to s 82 of the Trade Practices Act and s 12GF of the Australian Securities and Investments Commission Act that a person who has suffered loss or damage by reason of misleading and deceptive conduct need not be a party to the transaction. But this is at best an answer only in part (if at all) to the problems confronting the Federal Court proceeding. The Federal Court proceeding seeks to set aside the Jenolan Deed and the transfer of the lease thereby affecting the rights of third parties. Mr Field's oral submissions tried to address this problem by indicating that these claims are unnecessary and could be deleted and, in any event, the issue of invalidity of the administrator's appointment and its consequences could be determined as facts along the way without joining all interested parties. However, the fact is that these claims were in the application as before the Federal Magistrate and remained in the application as at the hearing of this appeal. Moreover, these claims are relevant to the claims for damages for misleading and deceptive conduct. Alleged knowledge on the part of St George of the supposed invalidity of the administrator's appointment, or facts that should have alerted St George to that effect, is an essential part of the factual matrix of the claims for damages. Fourth, and consistent with St George's submissions, the facts of the present case do not readily appear to engage any principle about lack of capacity to contract out of statutory protections from misleading and deceptive conduct. In May 1997 Mr Field gave a guarantee the key terms of which have been identified at [5] above. Events many years later said to involve unconscionable and misleading or deceptive conduct are then relied upon to assert some right to escape liability under that guarantee and to found claims for damages. How claims to this effect are to be sustained is difficult to comprehend as the Federal Magistrate properly recognised. Fifth, and as should be apparent from the discussion above, the facts asserted in the statement of claim and the propositions of law on which it depends are far from being "beyond real dispute". The facts include alleged oral representations based on a meeting in November 2005 (para 22). Oral representations from many years ago are notorious for generating disputes. The propositions of law include the invalidity of the appointment of an administrator on the basis of an alleged procedural defect. As St George submitted, the allegation of invalidity of the appointment of the administrator depends on an argument that s 58ZE of the National Parks and Wildlife Act 1974 (NSW) only permitted appointment if there were members of the Trust at the time of appointment when, in this case, all memberships had expired. The legal arguments to which this claim might give rise are numerous, as St George observed. For example, s 58ZE would have to be construed purposively before the question of breach could be answered. Further, even if breach occurred, the consequence is only invalidity if that purpose may be inferred in accordance with the canons of construction ( Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [91] - [93] ). Finally, the Jenolan Deed has been carried into effect and, amongst other things, the transfer of the lease has been registered under the Real Property Act 1900 (NSW). Each of these matters involves a substantial hurdle to Mr Field's claims of invalidity of the appointment of the administrator to the Trust. For present purposes, it is sufficient to make the following points. In terms of a purposive construction, the effect of Mr Field's argument is that where the terms of appointment of each member of the Trust has expired, the Minister, if he or she wishes to appoint an administrator, must appoint members by a notice in the NSW Government Gazette, then remove those members by another (possibly even the same) notice in the NSW Government Gazette and finally appoint the administrator by notice in the NSW Government Gazette (again possibly by the same notice). This is not an attractive construction of s 58ZE(1) of the National Parks and Wildlife Act . Mr Field's answer, that the National Parks and Wildlife Act evinces an intention that the Trusts control the reserved land, cannot stand in the face of s 58W(2) which makes the Trust subject to the control and direction of the Minister. Even as a matter of language alone, and ignoring the wider context of the provision, there is little to support an argument that powers vested in the Minister to either "remove any or all members of the Trust board" or "remove all members of the Trust Board...and appoint a person as an administrator of the Trust" should be read as requiring the appointment and removal of Board members before the power of appointment of an administrator can be exercised. In terms of the consequences of breach, invalidity can only result from a conclusion that the "the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition" evinces a legislative intention "to invalidate any act that fails to comply with the condition" ( Project Blue Sky at [91]). Public inconvenience is a relevant factor in this process of construction. The invalidating of every act of the administrator of the Trust merely because the Minister did not go through a charade of appointing members only to remove them and thereby (on Mr Field's argument) enliven the Minister's power to appoint an administrator would result in an extraordinary level of public inconvenience. Even a finding of fact to that effect, without any consequential declarations, raises real issues of public inconvenience. This is a formidable hurdle which Mr Field's submissions sought to circumvent by asserting that the condition in question determined the availability of the power so that the principles identified in Project Blue Sky did not apply. But the principles in Project Blue Sky assume and look to the consequences of breach of statutory conditions of all classes. In terms of the registration of the transfer of the lease under the Real Property Act , the grant of relief to Mr Field may be affected by the indefeasibility of the title as registered either as a matter of law or discretion (see, by analogy, City of Canada Bay Council v F & D Bonaccorso Pty Ltd (2007) 71 NSWLR 424 ; [2007] NSWCA 351). For these reasons, I am satisfied that Mr Field's claim to the effect that the appointment of the administrator of the Trust was invalid with the consequence of invalidating the administrators subsequent transactions (including the giving of notices under the lease and the entry into the Jenolan Deed) has no real prospects of success. Sixth, these matters affect many of Mr Field's claims in the Federal Court proceeding. For example, in oral submissions Mr Field advanced an argument that the report of JCR's administrators, PPB chartered accountants, dated 14 August 2006 was inaccurate in many respects including by reason of a statement that the receivers and managers had a limited timeframe to achieve a sale of the lease. This was said to be incorrect because all notices issued by the Trust's administrator under the lease were invalid due to his invalid appointment. Similarly, Mr Field contended that the Federal Magistrate erred by assuming the validity of that appointment for the purpose of his Honour's observation in [27] that JCR's rights appear to have expired by effluxion of time under cl 12.7 of the lease with the consequence that JCR's rights may not return any value in any event. Given the observations above about the numerous difficulties confronting Mr Field's argument of invalidity of the appointment of the Trust's administrator it is difficult to accept that either the receivers and managers or the Federal Magistrate erred. Further, and as these submissions disclose, the invalidity of the appointment of the Trust's administrator (and all of its associated problems) is a fact embedded in many of Mr Field's claims. Finally, this is not a case of any mere difficulty in resolving Mr Field's claims. Mr Field had to establish "other sufficient cause" so that a sequestration order ought not to be made within the meaning of s 52(2)(b) of the Bankruptcy Act . The Federal Magistrate was entitled and indeed bound to examine the cogency of the claims in the Federal Court proceeding and their likely prospects of success. In so doing the Federal Magistrate was entitled also to take the proceeding as it stood at the time of the hearing. His Honour was not obliged to hypothesise possible ways in which the proceeding could be recast to make more sense or improve its prospects. In these circumstances the conclusions of the Federal Magistrate about the Federal Court proceeding were amply supported by the available evidence, namely, that: (i) the statement of claim is obscure, presents obvious difficulties, and is unlikely to survive interlocutory scrutiny, (ii) the proceeding could not be described as well advanced, and (iii) the proceeding could not be described as either likely to succeed or even as a real claim. The Federal Magistrate also cogently explained his reasons for so concluding. It follows that I do not accept any of the grounds of appeal relating to the Federal Court proceeding. I turn to each ground relevant to the Federal Court proceeding in the light of the conclusions above. Ground 1 is a general assertion of error which appears to depend on one or more of the other grounds being sustained. As none are sustainable ground 1 falls away. Ground 2, insofar as the reference to "other considerations" outweighing the making or deferral of a sequestration order should be understood as a reference to the Federal Court proceeding, is a mere assertion that the Federal Magistrate should have reached a different conclusion without the exposure of any error in his Honour's reasoning process. Ground 3 depends on the Federal Court proceeding having a sufficient likelihood of success so as to warrant a finding of a sufficient cause not to make or to defer making a sequestration order. For the reasons given I am satisfied that the Federal Magistrate's conclusions about the lack of prospects of success of the Federal Court proceeding as pleaded were correct. Ground 4 depends on a finding that, irrespective of the prospects of success, the character and nature of the Federal Court proceeding warranted a finding of a sufficient cause not to make or to defer making a sequestration order. I can see nothing in the evidence to support the making of such a finding. As noted, the statement of claim does not refer to any fact, matter or circumstance at the time of entry into the guarantee that would have had the effect of invalidating it. The claim appears to depend on events some eight years after entry into the guarantee to absolve Mr Field from liability. The statement of claim does not confront in any meaningful way the numerous difficulties identified above. Ground 5 cannot be sustained insofar as it alleges a failure by the Federal Magistrate to consider the prospects of success of the causes of action in the Federal Court proceeding. The Federal Magistrate's reasons disclose the contrary. The discharge from liability under the guarantee is based on events subsequent to its making by reason of alleged unconscionable conduct. Yet the claim does not confront the terms of the guarantee. (2) The complaint about the Federal Magistrate's description of the Federal Court proceeding as an attempt "to present the facts and claims which were raised in the amended response before McDougall J" (at [16]) is unfounded. In the Supreme Court proceedings Mr Field did make the same allegations about the invalidity of the appointment of the administrator, the same complaints about the Trust's actions and the actions of St George. It is true that the Supreme Court proceedings did not make the same express claims that, in consequence, St George had acted unconscionably in making its demands for payment. But the document filed by Mr Field in those proceedings did expressly claim that, by its actions, St George discharged the guarantee, breached s 52 of the Trade Practices Act 1974 (Cth) and that it would be unjust and inequitable for St George to rely on the guarantee. The Federal Magistrate's summary description of the Federal Court proceeding being equivalent to the Supreme Court proceeding in [16] was correct. (3) The complaint about the Federal Magistrate's reference to the obscurity of the statement of claim and the lack of a clear pleading, as reasoned at [21] above, is also unfounded. His Honour's description was accurate. Ground 8 alleges an error by the Federal Magistrate in concluding that the Federal Court proceeding had little prospect of successful completion by 7 November 2009. The Federal Magistrate, at [25], said that "there is little present prospect that either of these very complex claims could be litigated to a successful completion within the life of this petition, which is due to expire on 7 November 2009" and, at [26], that "I am not persuaded that this could be achieved by Mr Field gaining a preliminary hearing in one of the courts on the issue of the validity of the execution of the Jenolan Deed on behalf of the Trust. I note that there is no evidence that any application for a separate trial of this issue has been made, nor that it is likely to be granted. Moreover, even if such a ruling were achieved it would not, in my opinion, significantly advance Mr Field's prospects of achieving relief which off-sets his liability to the Bank. His claims for this relief face some major difficulties, and Mr Field's evidence and submissions have not explained to me reasonably arguable solutions". Mr Field's complaint appears to be based on a challenge to the latter proposition concerning a separate hearing about the validity of the Jenolan Deed. But, as the Federal Magistrate may be taken to have understood, a separate hearing has to have utility for the resolution of the real issues in the proceeding as a whole. Mr Field's claims about invalidity of the Jenolan Deed are confronted by numerous difficulties. The legal link between the invalidity of the Jenolan Deed and a right in Mr Field to obtain a discharge from liability under the guarantee remains obscure. Hence, the Federal Magistrate's characterisation of the position was justified on the evidence and, in my view, correct. Ground 9 is derivative and depends on one of the other grounds being upheld. As such, the ground must fail. Ground 10 alleges that the Federal Magistrate failed to give weight or sufficient weight to the fact that many of the allegations in the statement of claim in the Federal Court proceeding are either substantiated or unlikely to raise a substantial dispute. This ground seems to rise no higher than mere assertion. It simply ignores the numerous factual and legal difficulties to which the statement of claim gives rise. Ground 11 repeats the allegation that the Federal Magistrate failed to give weight or sufficient weight to the fact that the validity of the Jenolan Deed could be determined quickly as a discrete legal issue at a separate hearing. The Federal Magistrate dealt with this suggestion and rightly concluded that it was unlikely and of dubious utility given the essential issue of liability under a guarantee which contains waivers of the type in the guarantee in question. Ground 14 repeats the complaint about the Federal Magistrate's conclusion that the statement of claim in the Federal Court proceeding was obscure and unlikely to survive interlocutory scrutiny. I am satisfied that the Federal Magistrate's conclusion was justified given my observations above. Ground 15 alleges that the Federal Magistrate failed to properly take into account the delay in the Federal Court proceeding by reason of St George's notice of motion filed 17 April 2009 seeking orders that the statement of claim be struck out. Insofar as Mr Field said the Federal Magistrate erred by treating delays as relevant to the merits of the proceeding, I reject the submission. The Federal Magistrate did no such thing. His Honour referred to the lack of urgency apparent in Mr Field's actions (at [25]) as making it doubtful that Mr Field would have a capacity to improve his prospects of success within the lifetime of the petition. This conclusion was open and able to be drawn on the evidence. Insofar as Mr Field relied on St George's motion filed 17 April 2009, the fact is that the obvious problems with the statement of claim made such an application for strike out likely. Contrary to Mr Field's submissions, it appears that St George was not required to file and serve a defence in the Federal Court proceeding if it filed and served a notice of motion to strike out the proceeding, as it has done. Mr Field also submitted that the amended commercial list response which he filed was struck out not for any failure to disclose a proper case with adequate prospects of success but because of its inadequacy as a response for the purpose of the Supreme Court's commercial list. According to Mr Field, the facts pleaded and relief claimed in the Federal Court proceeding go far beyond anything that could have been raised in the Supreme Court proceedings. Further, in the Supreme Court proceedings McDougall J did consider Mr Field's prospects of success in respect of the various claims made for discharge of liability under the guarantee. I have set them out above. A number of those issues refer to conduct of St George, by its servants and agents, which has the effect of discharging the guarantee, or of relieving Mr Field of liability under it, or of making it unjust for St George to seek to enforce the guarantee. On the face of things, they are all rights that Mr Field has bargained away by the clauses of the guarantee to which I have referred. It is clear that the courts will give effect to such a bargain: see Mason CJ in The Commonwealth of Australia v Verwayen [1990] HCA 39 ; (1990) 170 CLR 394 at 407. In the particular context of a guarantee, see the decision of Brennan J in Buckeridge v Mercantile Credits Limited [1981] HCA 62 ; (1981) 147 CLR 654 at 675. To the extent that Mr Field wishes to raise those issues, they are issues that are foreclosed by the terms to which I have referred. Nothing has been put, either supported by evidence or even based on submissions from the bar table, that would indicate a defence that can stand in the face of the contractual provisions to which I have referred, explained as they are by the authorities to which I have referred. Ground 7 alleges error in the Federal Magistrate failing to find or consider that Mr Field could not have raised the same matters in the Supreme Court proceedings as now raised in the Federal Court proceeding. In answer, I have already noted in [50] above that the essence of the two proceedings is largely the same. Further, apart from bare assertion, Mr Field's submissions provided no meaningful explanation of the reasons precluding the seeking of similar relief in the Supreme Court proceedings, other than the obvious difficulties presented by the terms of the guarantee itself, which is no more addressed in the Federal Court proceeding than it was in the Supreme Court proceedings. Ground 12 is bordering on the meaningless. Insofar as it alleges that the Federal Magistrate should not or could not have taken into account McDougall J's conclusions that the waiver provisions in the guarantee presented insuperable difficulties for Mr Field in the Supreme Court proceedings, I disagree. The Federal Magistrate was entitled to have regard to the fact that, in the Supreme Court proceedings, Mr Field also claimed a discharge from any liability under the guarantee but was unable to formulate an arguable defence in support of that claim. Ground 13 also seems to be repetitive of the substance of grounds 7 and 11 in that it alleges that Mr Field could not raise certain matters in the Supreme Court proceedings by reason of the waiver provisions in the guarantee but is not subject to the same constraint in the Federal court proceeding. But, as noted, the statement of claim in the Federal Court proceeding discloses no fact, matter or circumstance relevant to the validity of the guarantee at the time of its making. Mr Field relies on events years later as matters disentitling St George from enforcing the guarantee and discharging Mr Field from any liability under it. Yet the terms of the guarantee, including the waivers, remain. As noted, the fact that the Federal Court proceeding involves claims based on statutes for unconscionable and misleading and deceptive conduct, and consequential damages, does not undermine the Federal Magistrate's conclusions about the ultimate prospect of the proceeding or the difficulties that Mr Field would have to confront in the event of interlocutory challenge. The Federal Magistrate, at [27], said that "[o]ne of the difficulties is, as was pointed out by counsel for the Bank, that even if the Jenolan Deed was held to be void of legal effect, it is not apparent that this would allow the return to JCR of any valuable rights of a lessee under the 99 year lease. This is because they would appear to have expired by effluxion of time under cl 12.7". For the reasons given above I am unable to see how this observation involves an error given the numerous problems that Mr Field would have to confront in his claim that the Trust administrator's appointment was invalid and the consequential lack of prospects of that claim. His complaint was made by letter dated 16 June 2006 to the chairman of the Bank, and made numerous detailed criticisms of how officers of the Bank had responded to correspondence and events during 2005 and 2006. Although this letter was in a very large bundle of documents exhibited to his affidavit, it received no mention in the affidavit and had no apparent relevance to the grounds of opposition except as background of dubious relevance. The Bank's responses to the complaint were not in the bundle, nor, understandably, in its evidence in reply to the notice of opposition. The raising of the additional issues at a late stage, and outside the time-tables previously directed by the Court, was opposed by counsel for the Bank. He pointed to prejudice facing the Bank's legal representatives in attempting to take instructions on short notice about the issues raised by the 2006 complaint and the attack on its handling. Taking into account both that prejudice, and my difficulty in discerning how the matter materially advances Mr Field's opposition to the petition, I refused leave to rely upon these parts of the affidavit and upon the new contention. The material was rejected on a discretionary ground (delay and the late raising of additional issues). Nothing suggests any error of principle in the Federal Magistrate's rejection of this material. The fact that the material had potential relevance to para 45(f) of the statement of claim does not invalidate the Federal Magistrate's conclusion that it was difficult to discern how it advanced Mr Field's position. Paragraph 45(f) alleges as a particular of the claim for unconscionable conduct that St George failed to apply the Code of Banking Practice to various complaints Mr Field had made. The observations of the Federal Magistrate about the difficulties this evidence involved in terms of form and substance and its lateness justified the decision to reject it. The difficulty with this ground is that the evidence in question comprised a report to the creditors of JCR by the administrators, not the receivers and managers. It is clear that they closely considered the foundations of Mr Field's claims of very substantial loss arising from the making of the Jenolan Deed. In particular, they examined a valuation report of Messrs Magin and Roberts obtained in 2001 by JCR for financing purposes, upon which Mr Field largely pins his claim that the true value of the lease in 2006 exceeded $11m, rather than the total consideration of $2.350m which reached the receivers. The administrators pointed to substantial reasons for doubting the 2001 valuation, and its continuing weight. The relevant passages in their report are too lengthy for me to extract, but I find their analysis of the various valuations and the history of JCR and its receivership to be strongly persuasive. In my opinion, the administrator's opinions in this summary and elsewhere in their report to creditors, and the evidence to which they point, suggest that there is little prospect that Mr Field will be able to establish that the true value of JCR's business at the time of the Jenolan Deed exceeded the consideration provided in that Deed, whether it was validly or invalidly entered into, and whether or not it was attended by challengeable behaviour by the Bank. No error in so doing is disclosed. Mr Field has not demonstrated that the Federal Magistrate's conclusions and orders were the result of any legal, factual or discretionary error. Having reviewed the available material I am convinced that the Federal Magistrate's conclusions were not only justifiable but correct. Accordingly, the appeal must be dismissed with costs. | creditor's petition sequestration order whether "other sufficient cause" so that a sequestration order ought not to be made within the meaning of s 52(2)(b) of the bankruptcy act 1966 (cth) whether pending litigation against the creditor "other sufficient cause" bankruptcy |
2 The Applicant, a Deputy Commissioner of Taxation (the Deputy Commissioner), has applied to the Court for the winding up of the Respondent Company, BK Ganter Holdings Pty Ltd ACN 088 472 066 (Ganter). 3 The proceeding commenced upon the filing of the application for the winding up of Ganter on 20 August 2008. Prior to that date, the Deputy Commissioner had served a statutory demand upon Ganter with which that company failed to comply. The application first came on for hearing before the Court in the Registrar's list on 18 September 2008. Since then, it has been twice adjourned by Registrars; firstly on 18 September 2008 when it was adjourned until 30 October 2008 and then, secondly, on that date when it was further adjourned until 13 November 2008. It suffices to note that the occasion for each of the adjournments appears to have been correspondence directed by or on behalf of Ganter to the Deputy Commissioner indicating that the company was in the process of obtaining finance to enable it to pay the debt due in full and a corresponding request to the Registrar by the Deputy Commissioner to adjourn the application. 4 Earlier this month and prior to 13 November 2008, like correspondence was directed to the Deputy Commissioner by the solicitors acting for Ganter. An adjournment of the proceeding for a further four weeks "so that finance can be secured" was proposed. On this occasion, the Deputy Commissioner signified that he would not agree to an adjournment. Instead, on 4 November 2008, the Deputy Commissioner advised the solicitors for Ganter that an order for the winding up of the company would be sought on 13 November 2008 "unless payment in full in cleared funds is received on or before 13 November 2008". The preceding day Ganter had made a payment of $150,000 to the Deputy Commissioner in reduction of the amount then due to the Commonwealth of Australia and payable to the Commissioner of Taxation in respect of a revenue debt. That left a balance of $149,762.09 outstanding. 5 On 5 November 2008, having confirmed that the amount owed as at that date was $149,762.09, the Deputy Commissioner advised the solicitors acting for Ganter that, if that sum was paid prior to the hearing of the application on 13 November 2008, the Deputy Commissioner would seek the adjournment of the proceedings "until all funds have been cleared and then dismiss the wind up application at the next return date". 6 Thereafter, an endeavour was made by Ganter to transfer the advised outstanding amount to the credit of an account maintained by the Deputy Commissioner on behalf of the Commonwealth. That endeavour failed, not through any fault on the part of the Ganter, but apparently because of an inability on the part of the banking system to annotate the transfer with all of the identification details specified by the Deputy Commissioner. If nothing else, the course of subsequent events in this case might be thought to highlight the desirability of the Commissioner's settling with the major trading banks a means by which such transfers might be facilitated in a mutually satisfactory way. That though is a matter for the Commissioner, not the judiciary, for it is the Commissioner who has the responsibility for the general administration of the taxation laws. 7 Upon ascertaining that it was not possible to effect payment by direct transfer, Ganter procured from the National Australia Bank Limited (NAB) a bank cheque in favour of the Australian Taxation Office (ATO) in the sum of $149,762.09. This cheque was delivered to the Brisbane Office of the ATO by Ganter's solicitors under cover of a letter from those solicitors which accurately recited the effect of a conversation which had occurred earlier that day between a solicitor in the employ of that firm and an officer in the Legal Services Branch of the ATO. The letter recited that "you [the Deputy Commissioner of Taxation] intend to adjourn the application, which is presently listed for Thursday 13 November 2008, for one week to allow for the cheque to clear, and that the matter will be dismissed at the next return date upon clearance of the bank cheque". 8 On 11 November 2008, the Deputy Commissioner agreed to this proposed course. Later that same day an alternative was proposed on behalf of Ganter by its solicitors. That was that the winding up application ought to be dismissed on its next return date, ie 13 November 2008. That course was not agreed to by the Deputy Commissioner. Instead, on 12 November 2008, the Deputy Commissioner signified a disposition to seek a one week adjournment the following day. Ganter's solicitors replied later on 12 November 2008, indicating that they intended to appear on 13 November 2008 so as to seek the dismissal of the winding up application. 9 When, on 13 November 2008, the application for winding up was called on in the Registrar's list, the solicitors for Ganter sought the dismissal of the application. This course was opposed on the part of the Deputy Commissioner who sought adjournment of the application for a further week. Apprehending, with respect correctly, that a point of general practical utility was raised by the circumstances of the case, the District Registrar then referred the hearing of the application to a Judge, adjourning accordingly for that purpose. 10 It appears from the evidence that the Deputy Commissioner's nomination of a period of one week for the proposed adjournment of the winding up application was not coincidental. It seems that the experience of the ATO in dealing with Australian banks is that, in the ordinary course of events, Australian banks take five working days following the electronic reporting by the ATO to the relevant bank of the receipt of a cheque. That electronic reporting seems to be the equivalent of the presentation of the cheque to the bank for payment. The inference necessarily arises that the Deputy Commissioner's nomination of one week as the length of the proposed adjournment was informed by a knowledge of this experience with the banks. 11 In this case, the electronic reporting by the ATO occurred on 11 November 2008 via the Penrith, NSW office of the ATO. In the course of his general administration of the taxation laws the Commissioner has determined that the ATO should centralise its processing of payments. That task has fallen to the Penrith office. It was to there that the Brisbane office forwarded the bank cheque received on 10 November 2008. 12 Investigations by the ATO of the NAB have disclosed that the bank's position in relation to bank cheques is informed by its membership of the Australian Bankers' Association. Bank cheques are generally treated by the law in the same manner as ordinary cheques. Although some people regard bank cheques as equivalent to cash, there are certain circumstances where a bank cheque may not be paid. To clarify the position, NAB, as a member of the Australian Bankers' Association, adopts the following policy in relation to NAB bank cheques. Forged or unauthorised If the signature of an officer of NAB is forged or placed on a bank cheque without NAB's authority, NAB is not legally liable for the cheque concerned. Materially altered NAB will dishonour a bank cheque that has been fraudulently and materially altered. NAB will co-operate with any holder of a cheque, or person who is about to receive it, who may want to verify that the cheque is a valid cheque. Reported stolen or lost If NAB is told that a bank cheque is stolen or lost and is satisfied that this is the case, NAB will not pay the cheque if it is presented for payment by a person who has no right to it. NAB may provide a replacement cheque for a fee. Court order restraining payment NAB must observe an order of a court restraining NAB from paying a bank cheque which is presented for payment while the order is in force. Failure of consideration for the issue of a bank cheque Where NAB has not received payment for issuing a bank cheque to a customer (e.g. your cheque to NAB in payment for the bank cheque is dishonoured), NAB may refuse to pay the bank cheque only if the person presenting the bank cheque for payment: has not given value for it (e.g. the bank cheque is stolen); or has given value for it but at the time of doing so he or she knew NAB had not been paid for the cheque (e.g. that the cheque in favour of NAB had been dishonoured). 13 It was not suggested in this proceeding that, so far as a Commonwealth revenue debt is concerned, there is any express statutory provision which alters the usual position which prevails as between creditor and debtor when a cheque is given in payment of a debt. The payment is subject to a condition that the cheque be paid on presentation. If it is dishonoured the debt revives. Although it is sometimes said that the remedy for the primary debt is suspended, the suspension is no more than a consequence of the conditional nature of the payment: Tilley v Official Receiver in Bankruptcy [1960] HCA 86 ; (1960) 103 CLR 529 , at pp 532-533, 535-536, 537. The condition is a condition subsequent so that, if the cheque is met, it ranks as an actual payment from the time it was given. Subject to non-fulfilment of the condition subsequent, the payment is complete at the time when the cheque is accepted by the creditor: Thomson v Moyse (1961) AC 967 , at p 1004. 14 It was submitted for the Deputy Commissioner that, in the events which had transpired in this case, that usual position had been altered by the signification by the Deputy Commissioner that he would agree to the dismissal of the winding up application once the proceeds of the cheque had been cleared. It seems to me though that the evidence is more consistent with the Deputy Commissioner's adopting a position which was in accordance with the general position when a cheque is given in payment of a debt. It has been accepted subject to a condition that the cheque would be paid on presentation. Subject to the fulfilment of that condition, payment of the then outstanding amount of the debt due to the Commonwealth and payable to the Commissioner was complete upon the acceptance by the Deputy Commissioner on 10 November 2008 of the cheque then proffered on behalf of Ganter. In this regard, the fact that the proffered cheque was a bank cheque may well have provided a degree of comfort to the Deputy Commissioner in deciding to accept it, but the position would have been the same in law so far as the relationship of debtor and creditor was concerned had the cheque concerned been one where the drawer was other than a bank. 15 Strictly speaking, a cheque, even a bank cheque, is not a form of legal tender. Subject to some particular contractual or statutory provision, the only forms of legal tender remain Australian notes or, subject to the limits specified, Australian coins --- see s 36 of the Reserve Bank Act 1959 and s 16 of the Currency Act 1965 respectively. However, in general trade and commerce, as Mason J observed in George v Cluning (1979) 53 ALJR 767 (note) by reference to Canadian authority, a payment by cheque can amount to sufficient payment if not objected to on that account. When the history of Ganter's endeavours to pay the debt after the filing of the winding up application is recalled and that the company was, by operation of s 459C(2)(a) the Corporations Act 2001 presumed to be insolvent the Deputy Commissioner would have been entitled not to accept the cheque. A refusal to accept the cheque would not have eliminated the debt in question: Australian Mid-Eastern Club Ltd v Yassim (1989) 1 ACSR 399 , at 403 (NSWCA); Deputy Commissioner of Taxation v Visidet Pty Ltd [2005] FCA 830 at [3] per Gyles J. 17 The accounts of the ATO in respect of Ganter record a credit to its account on 11 November 2008 in the amount of $149,762.09. That does no more than recognise what will be the effect of the acceptance of the cheque if the condition subsequent as to the clearance of the cheque is met. Were the cheque for some reason to be dishonoured the creation in the accounts of the ATO of an entry reversing the credit recorded on 11 November 2008 would be appropriate. I note that the account concerned is made accessible to the company's tax agent by the Commissioner in the ordinary course of his administration of the taxation laws. 18 As it happens, though the period within which, in accordance with the NAB's usual practice, a notice of dishonour might be given to the ATO has yet to elapse, other evidence from the NAB, which was not available at the time when the application came on before the District Registrar on 13 November 2008, suggests that the bank does now have cleared funds available to meet the cheque. As at 13 November 2008 the prevailing position, so far as advice to the ATO from the NAB was concerned, was that, even were a special clearance to be sought, it would not be possible to clear the cheque until after 11:00 am on 18 November 2008. I am not satisfied on present materials that the condition subsequent has been met. 20 Assuming that the Deputy Commissioner ought presently to be regarded as an applicant whose debt has been paid, it does not, with respect, seem to me to follow that the application must therefore necessarily be dismissed. That circumstance would not, in my opinion, put an end to the petition nor would it affect the jurisdiction of the court to hear and determine the petition although, of course, in such circumstances proceedings might not be continued and, if they were, the court could, in the exercise of its discretion, refuse to make a winding up order upon the petition of a person not then a creditor. In that same case, Barwick CJ (at 179) also seems to have been of the view that, under the then statutory regime for the winding up of a company, the date for the determination of whether a petitioner was a creditor was the date of presentation of the winding up petition. 21 In my opinion, the date for the determination of standing to apply for the winding up of a company is the date when the application is made. As it was when Motor Terms v Liberty Insurance (supra) was decided, the process for the winding up of a company remains today entirely statutory. By s 459A(1)(b) of the Corporations Act a creditor is one of the persons who may apply for the winding up of a company. The application for the winding up of Ganter was made by the Deputy Commissioner upon the filing of the application in this Court on 20 August 2008. At that time, the Deputy Commissioner was, on any view, a creditor. Like Gyles J in Deputy Commissioner of Taxation v Visidet Pty Ltd (at [5]), I am not persuaded that there is any requirement flowing from the Corporations Act that the applicant must continue to be a creditor at the time when the winding up application is heard. As his Honour there states (ibid), and though it is cited in a number of cases which he notes, the passage from the judgement of Menzies J in Motor Terms v Liberty Insurance (supra) does not support the existence of any such requirement. 22 The true position is that the applicant's status as a creditor at the time when the application was made and the presumption flowing from the company's failure to comply with the terms of a statutory demand are sufficient to give the Court jurisdiction to order the winding up of the company. That was the conclusion reached by Zeeman J in Deputy Commissioner of Taxation v Guy Holdings Pty Ltd (1994) 116 FLR 314 at 318. As did Gyles J in Deputy Commissioner of Taxation v Visidet Pty Ltd (at [6]), I agree with that conclusion. As Zeeman J observed in the Guy Holdings Case (at 320), "in the case of an application under s 459P where the debt the subject of the statutory demand has been paid after the filing of the application, the application ought to be dismissed unless there is established some positive reason that a winding up order ought to be made". His Honour is there referring to the way in which, in those circumstances, the discretion vested in the Court on the hearing of a winding up application by s 467 of the Corporations Act would ordinarily be exercised. 23 How should that discretion be exercised as matters presently stand in this case? There is no proof that the company owes any other amount either to the Commissioner or to any other creditor. Perhaps in testimony to the latter, no other creditor of the company has sought to be substituted as an applicant. 24 In their submissions the solicitors for the company pointed to the observation made by Gyles J in Deputy Commissioner of Taxation v Visidet Pty Ltd (at [8]), "With trading companies the existence of a winding up proceeding is a very serious inhibition and has very serious impacts". I respectfully agree. That is one reason why it behoves a company which wishes to keep trading to pay its debts as they fall due or at least later to comply with the terms of a statutory demand. It is also a reason why, all other things being equal, a Court would be disposed, as a matter of discretion, to dismiss a winding up application if satisfied that the debt owed to the applicant creditor had been paid. Another consideration not to be ignored is the protection of the revenue. Yet another consideration is that Ganter, by its solicitors, initially agreed with the Deputy Commissioner's proposal that on 13 November 2008 the adjournment of the application for one week ought to be sought. A further consideration is the public interest in whether a company which is presumed to be insolvent ought to be permitted to continue to trade or whether it ought to be wound up. 25 Ganter's change of heart as to the course which ought to be taken on 13 November 2008 seems to have been multi-factorial in origin. Inferentially from the submissions made to me and to the District Registrar it was founded upon what I regard as the misapprehension that the payment of an applicant creditor's debt obliged the Court to dismiss a winding up application, as opposed to that being a factor going to discretion. Likewise, it seems to have been grounded on the belief that the acceptance of the bank cheque by the Deputy Commissioner extinguished the debt then and there, as opposed to so doing upon the fulfilment of the condition subsequent of the cheque's being cleared. Further, it seems to have been grounded upon the belief that, the cheque payment having been recorded as a credit on 11 November 2008 in its accounts, the Deputy Commissioner was obliged, as a "model litigant" to agree to the dismissal of the winding up application on 13 November 2008. 26 This, with respect, misapprehends the obligation that falls on those representing the interests of the Crown in civil litigation. One of those interests, and it is a vital interest, is the protection of the revenue. The Deputy Commissioner would certainly have failed in his duty to the Court as a model litigant had the acceptance of the cheque and the terms upon which it had been accepted not been drawn to the Court's attention on 13 November 2008. It was. Especially as matters then stood as to the clearing of the bank cheque and the Deputy Commissioner's knowledge as to the practice of the NAB in relation to the circumstances in which it would not meet a bank cheque and the time within which any such disposition on the part of the bank would usually be signified, it was not unreasonable for the Deputy Commissioner to resist the dismissal of the application that day. The position then to take was a matter for the value judgement of the Deputy Commissioner in the circumstances in the administration of the taxation laws. The entry in the accounts of the ATO had no more than a provisional quality about it. 27 As at 13 November 2008 there was no obligation on the part of the Court then to dismiss the application. The disposal of the application then called for the exercise of a discretion. It still does. Though there is more confidence now that the condition subsequent will be met, it seems to me in the circumstances of this case that Ganter ought to be held to the terms upon which it asked and the Deputy Commissioner agreed to accept the cheque and to seek the adjournment of the winding up application. I therefore adjourn the hearing of the application until 19 November 2008 at 9:30 am, the date requested by the Deputy Commissioner. Even assuming that there is power so to do, I do not believe that it would be appropriate to make a conditional order of dismissal, which was an alternative suggested on behalf of the Deputy Commissioner. 28 I shall hear the parties as to costs. I certify that the preceding twenty-eight (28) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. | winding up neglect to pay debt after statutory demand acceptance of bank cheque in payment of debt subject to condition that winding up application be adjourned for one week so as to confirm its clearance continuation of proceedings by creditor in the interim whether applicant continued to have standing whether court obliged to dismiss application applicant held to continue to have standing no obligation to dismiss application application adjourned as a matter of discretion corporations |
After long and extensive litigation, the Refugee Review Tribunal (the Tribunal), on the third occasion it had to consider the claims of the appellants, found that the appellants had fabricated their claims, and that they were not truthful or credible witnesses. The Tribunal also found that the appellants' witness lacked credibility and did not accept his evidence. The Tribunal found that the appellants were not homosexual and that they had not lived in a homosexual relationship. The Tribunal therefore found that neither would face persecution should they be forced to return to Bangladesh. The Tribunal rejected all of the appellants' claims. This appeal by the appellants to this Court will be allowed. I am satisfied that the decision by the Tribunal on the third occasion the matter was before it was not made in good faith. Such a finding is one that is not reached lightly, and unsurprisingly is one that is very rare. I am satisfied that the finding of the third Tribunal that the two appellants are not, and were not, homosexuals was not made in the exercise of honest fact finding, but was deliberately calculated to "get around" difficulties in the factual circumstances of the appellants' case, thrown up by the judgment of the High Court in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs; Appellant S396/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 ; (2003) 216 CLR 473 ( Appellant S395/2002 ). The appellants are Bangladeshi nationals. They came to Australia, arriving on 19 February 1999. They sought protection visas on 4 March 1999, claiming that they were homosexuals who had lived together as a couple since 1994, and that they had been subjected to persecution in Bangladesh because of their homosexuality. A delegate of the Minister for Immigration and Citizenship found, on 23 April 1999, that the applicant born on 1 July 1973 (NAOX, or the younger Bangladeshi), was a "citizen of Bangladesh", accepted "as plausible the applicant's claim that he is a homosexual", but was "unable to accept there is a real chance that he will be persecuted on that ground in Bangladesh". It found that they appellants were homosexuals; found that homosexuals cannot live openly in Bangladesh, and imposed the "discretion test". On 26 July 2001, Lindgren J rejected an application under s 476(1) of the Migration Act 1958 (Cth) (the Act). ... Apparently, therefore, they lived together in the way they wished to do. In sum, in living together in the way in which they did, they were naturally "discreet" and not "open", according to the meanings those words had for the [Tribunal]. (case references omitted). On 11 October 2002, the appellants were granted special leave to appeal to the High Court of Australia. On 9 December 2003, the High Court allowed the appeal, rejecting the "discretion" test, and remitted the matter to the Tribunal for re-determination. The matter had proceeded, from the decision of the delegate, to the Tribunal, the Federal Court, the Full Court of the Federal Court and to the High Court on the basis that the appellants were Bangladeshi homosexuals. The only live issue was whether they faced a real risk of persecution, a matter which involved considerations of whether there was a requirement for "discretion", and an enquiry as to why the appellants chose to live "discreetly" and not "openly". Confronted by this judgment in the High Court, the second Tribunal found the only way out to justify the refusal of the protection visas. It found that they were not homosexuals after all. The second Tribunal found that the appellants were "close relatives", who have been "married to women", which is "at odds with their being a homosexual couple who met by chance in 1994 ..." I interpolate to observe that the third Tribunal disagreed with the second Tribunal as to the basis of the crucial finding of homosexuality. However, the Tribunal rejected most of the claims made by the appellants as to the persecution they had suffered in Bangladesh, including claims that they had experienced threats and violence over many years. It found that they had not in the past suffered serious harm by reason of their homosexuality, observing that they had "clearly conducted themselves in a discreet manner and there is no reason to suppose that they would not continue to do so if they returned home now". The Tribunal rejected most of their individual claims, but accepted that it was not possible to live openly as a homosexual in Bangladesh. It found, however, that the applicants had "clearly conducted themselves in a discreet manner and there is no reason to suppose that they would not continue to do so if they returned home now". The applicants contended that the Tribunal had erred in law by imposing upon them a requirement that they live discreetly in order to avoid persecution. It had made a finding of fact that they would live discreetly. That finding did not itself involve error. The Tribunal must determine how an asylum seeker is likely to live on return to his or her country of origin and assess the chance of persecution on that basis. It is not relevant to consider whether the asylum seeker could live in the country of origin without attracting adverse consequences. ... If on the facts there is a real chance that a person's homosexuality may be discovered despite living discreetly, and if discovery would lead to serious harm, the person is a refugee. ... The Tribunal accepted that "homosexual men in Bangladesh constitute a particular social group under the Convention". To attempt to do so would mean to face problems ranging from being disowned by one's family and shunned by friends and neighbours to more serious forms of harm, for example the possibility of being bashed by the police. However, Bangladeshi men can have homosexual affairs or relationships, provided they are discreet. Bangladeshis generally prefer to deny the existence of homosexuality in their society and, if possible, will ignore rather than confront it. It is also clear that the mere fact that two young men held hands or hugged in the street would not cause them to be seen as homosexuals, and that being caught engaging in sexual activity on one occasion would be most unlikely to cause a young single man to be labelled a homosexual. It went on to say that: "To attempt to do so would mean to face problems ranging from being disowned by one's family and shunned by friends and neighbours to more serious forms of harm, for example the possibility of being bashed by the police. " (Emphasis added. ) The Tribunal further found that "Bangladeshi men can have homosexual affairs or relationships, provided they are discreet ". (Emphasis added). Nowhere in the reasons of the Tribunal is any consideration given explicitly to whether there was a real chance that the appellants would be subjected to any of the "more serious forms of harm" to which the Tribunal alluded. Nowhere in the reasons is any consideration given explicitly to whether the appellants would be subjected to ill-treatment by police. Nowhere is there consideration of whether subjection to any of these "more serious forms of harm" would amount to persecution. By order of the High Court, the matter was remitted to the Tribunal for re-determination. What occurred on the remitter by the High Court to the second Tribunal is recorded in the judgment of Federal Magistrate Smith of 13 April 2006, on the occasion of the appeal from the decision of the second Tribunal to the Federal Magistrates Court. I will share the job of considering that argument with other minds in the Tribunal. That is to say I will take legal advice from our legal section on that matter. Those grounds were particularised. The Tribunal's finding is based on evidence provided by them and by [SZFSG's] brother. The Tribunal does not rely on the evidence of the anonymous caller to DIMIA in relation to these or, in fact, any adverse factors in the Applicants' respective cases. However, the Tribunal is also of the view that the anonymous caller's evidence does not help their cases. The Tribunal considers that it is important to make this clear because the Applicants have made unsupported claims about the caller having acted on behalf of either a homophobic section of the Bangladeshi community or DIMIA or both. The Tribunal does not accept those suggestions. For the reasons stated, the Applicants' being close and married relatives is at odds with their being a homosexual couple who met by chance in 1994 and lived exclusively with each other in Bangladesh for four years until coming to Australia together. The fact that they are married knocks out their claims about their aversion to heterosexual marriage. It is perhaps understandable, in the light of the history of the proceedings from the decision of the delegate all the way to the High Court, but very unfortunate, that counsel for the appellants should have sought to argue issue estoppel. On 13 April 2006, Smith FM dismissed the application by the appellants for orders by way of judicial review of the decision of the second Tribunal handed down on 14 January 2005. That decision affirmed the decisions of the delegate of the Minister made on 23 April 1999, but on quite different factual findings. The first Tribunal found that the appellants were homosexual; the second Tribunal found "the Applicants are close relatives who are, or have been married to women", and "for the reasons stated, the Applicants' being close and married relatives is at odds with their being a homosexual couple who met by chance in 1994 and lived exclusively with each other in Bangladesh for four years until coming to Australia together. The fact that they are married knocks out their claims about their aversion to heterosexual marriage". An appeal from the judgment of Smith FM to the Federal Court (Emmett J) was allowed by consent, and the matter was remitted to the third Tribunal. The findings of the third Tribunal were the subject of an unsuccessful appeal to the Federal Magistrates Court, and are now before this Court. The appellants rely on four grounds before this Court. Grounds 5 and 6 were not pressed. Having regard to the legality/merits dichotomy of judicial review, this may, arguably, not be a sufficient basis for the Court to interfere. However, I find that the decision was perverse to such an extent as to exhibit a serious failure in the decision making process, with the consequences that the decision was so unreasonable that it was beyond power: see TCN Channel Nine Pty Ltd v Australian Broadcasting Tribunal (1992) 28 ALD 829 at 861. The decision of the third Tribunal manifests "an apprehension of predisposition, tendency or propensity towards a given result": NADH v Minister for Immigration & Multicultural and Indigenous Affairs [2004] FCAFC 328 ; (2004) 214 ALR 264 at [16] . That apprehension is, in my judgment, well founded. It was said that the approach to finding the facts, and the facts as found, demonstrated a lack of impartiality. No particular interest, affection, enmity or prejudice was identified which might have occasioned or contributed to the impugned conduct or approach. Thus formulated, the criticism of lack of impartiality is one which amounts to a complaint of an apprehension of predisposition, tendency or propensity towards a given result: cf Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 ; 178 ALR 421 ; [2001] HCA 17 at [183] per Hayne J. I am satisfied that this was done, not as a genuine exercise of administrative fact finding to which Courts, and in particular this Court, should, and must, defer, but in an attempt to insulate the finding from judicial examination, because it was expressed as being based on credibility. If the RRT had acted in such a manner it would have raised the perception that the findings made by the RRT in that regard had been moulded to support a particular conclusion: (see: Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5 ; (2000) 199 CLR 135 at 152, [42] . If the primary decision-maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence. Whether the decision of the third Tribunal be regarded as unreasonable in the Wednesbury corporation sense, or on the basis that the decision was not made in good faith, or on the basis that there was a lack of impartiality in the fact-finding process, the decision of the third Tribunal has to be set aside. Concerning Wednesbury unreasonableness, Weinberg J in Australian Retailers Association v Reserve Bank of Australia [2005] FCA 1707 ; (2005) 148 FCR 446 at [555] , referred to Aronson, Dyer and Groves', in Judicial Review of Administrative Decisions, 4 th Ed, view that the courts "regard this ground as representing a safety net, designed to catch the rare and totally absurd decision which has somehow managed to survive the application of all other grounds of review". It is now necessary to say with some particularity why, in my view, the judgment of the third Tribunal was not made bona fide. There are, in particular, two aspects of the evidence which were relied on by the Tribunal which lead me to conclude the Tribunal was concerned, not to find the facts truly, but to arrive at a predetermined conclusion, namely that the appellants were not homosexuals. The third Tribunal had before it the evidence before the three Tribunals. A very large volume of material had been sought from the appellants by way of letters written pursuant to s 424A of the Act. Much of the information sought has the flavour of interrogation directed at disproving the appellants' primary contention that they were homosexuals. There was a s 424A letter dated 5 November 2004 sent to the second appellant, the response of which was considered by the second Tribunal. Further letters of invitation were sent by fax on 17 October 2007. Further, in the Application for Migration to Australia, by [SZFSG's] sister, she also notes [the same named person] as her brother. Please provide proof that this person, who has exactly the same name as you, is not you. That is, that you [NAOX] are not [SZFSG's] brother. The DNA testing report from DNA Laboratories Sydney was carried out on each appellant. The DNA analysis taken at the initiative of the appellants was done in order to establish that they are not brothers. The Tribunal, however, dissected the DNA analysis and focuses on a statement that there was "inconclusive evidence of a cousins relationship". There were further invitations sent by fax on 14 December 2007, as well as further invitations on 16 January 2008. On 16 January 2008 there was a complaint of inadequate transmission of 22 pages of the 52 page fax dated 16 January 2008. There was a request for an extension of time. The Tribunal is acting in a partisan manner to bring about a particular result. (NB. (NB. (NB. Rather it has all the hallmarks of a decision maker attempting to find some justification for a decision it has already decided to make. The Tribunal is very concerned about claims relating to bias. These matters raised possible issues of truthfulness and credibility. The Tribunal also became aware at the hearing before the third Tribunal of possible inconsistencies and unreliability in the witness' evidence. The second discrete body of evidence, which in my judgment demonstrates the Tribunal did not approach its task bona fide, relates to the "first applicant's refusal to answer a question". This evidence in my view, indicates that the Tribunal was not concerned with genuine fact finding, but was seeking to give effect to a preordained result. It would be illogical were you to refuse such an offer and then go on to find, as did Member Hardy, that we are not homosexual. The Tribunal asked if they used a lubricant. The first applicant stated that he did not wish to answer. It is quite another thing when the Tribunal prefaces the question "Now you may not want to answer this question, but when you do have sex, do you use a lubricant" to which the first appellant replied, "I don't want to. " And the Tribunal noted "Don't want to answer", and to use the first appellant's refusal to answer that question as the basis for a finding that the first appellant was not a truthful or credible witness. In my judgment, the decision of the third Tribunal was not made in good faith, and was unreasonable in the Wednesbury Corporation sense. The Tribunal was guilty of bias, in the sense that it was predisposed to making its ultimate finding that the appellants were not in a homosexual relationship. The appeal must be allowed, and the matter remitted, yet again, to the Tribunal, differently constituted, for consideration. The first respondent must pay the costs of the appellants, to be taxed if not agreed. I certify that the preceding eighty-two (82) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender. | whether the decision of the refugee review tribunal was made in bad faith and breached procedural fairness appellants had been through lengthy litigation original tribunal had made a finding of fact that appellants were in a homosexual relationship relationship was not disputed in federal court and high court proceedings third tribunal found that appellants were not in a homosexual relationship tribunal made findings seeking to give effect to preordained result decision of the tribunal manifests "an apprehension of predisposition, tendency or propensity towards a given result" tribunal's decision was not made in good faith and was unreasonable appeal allowed. ss 424a , 476 (1) migration migration act 1958 (cth) |
There are four issues outlined in the Amended Notice of Appeal. The first two concern the construction and effect of an undertaking given by consent and an order made by his Honour on 10 August 2005. The third issue is whether his Honour erred in law in failing to dismiss the creditor's petition on the basis that there was sufficient cause for so doing under s 52(2)(b) of the Bankruptcy Act 1966 (Cth) ("the Act "). Fourthly, the issue is whether the bankruptcy notice is a nullity because there was reasonable doubt as to the identity of the creditor. The bankruptcy notice was issued by Leonard Cohen & Co on 13 January 2005 in relation to the above judgment debt. The judgment debt was based on a judgment in the District Court of Western Australia in Matter No. 2520 of 2003. 3 On 30 June 2005, Registrar Tesoriero dismissed the appellant's application to set aside the bankruptcy notice. An application was then made to review that decision. On 10 August 2005, Federal Magistrate Raphael made orders by consent extending time for compliance with the bankruptcy notice until three working days after the decision was made on a strike out application then pending in the District Court brought by the respondent in respect of the appellant's cross-claim. 4 On 24 August 2005, the District Court Registrar made orders in Matter No. 2520 of 2003, dismissing the appellant's application to strike out the writ of summons and statement of claim. Time for compliance with the Bankruptcy Notice 22 of 2005 extended until 3 working days after the decision of the Registrar District court in the strike out application is handed down or the strike out application is otherwise dismissed whichever is the earlier. In the event the strike out proceedings are decided in favour of the applicant and the proceedings 2520 of 2003 are struck out with costs the bankruptcy notice is set aside upon the making of such orders. Costs of these proceedings will be reserved for decision and the parties are required to file with my associate and serve submissions thereon on or before 1 December 2005. This application, it is said, sought additional orders to the strike out, including an application that there be summary judgment against Leonard Cohen & Co and that the proceedings be dismissed. 10 Order 16 of the District Court Rules gives the power to grant summary judgment. The language of the Court Order is clear, and it refers specifically to the strike out application and not to the disposition of the application before the Deputy Registrar. Separate relief was sought based on two different orders. The strike out application was dismissed. The strike out application was therefore the subject of "a decision". There is no reference in the Chamber Summons to the disposition of all relief sought in the summons, including summary judgment and other prayers in the summons. On the contrary, the reference was, by consent, limited specifically to the application for a strike out. One must assume that when orders of this nature are consented to, careful thought has been given to the precise wording. Accordingly, for these reasons, the "three working days" as referred to in the Consent Orders, ran from the making of the Court Order dismissing the strike out application on 24 August 2005. The fact that there is a reference to the balance of the application being adjourned and costs reserved does not affect this conclusion. 11 Accordingly, I do not accept the appellant's submission on the first issue. The undertaking given in terms committed the appellant to forthwith pay the amount claimed in the bankruptcy action and to take no further proceedings seeking to set aside the notice. This undertaking was enlivened on and after dismissal of the strike out. 13 It must also be kept in mind that in the judgment under appeal, the learned Magistrate was construing the consent undertaking and not a statutory instrument. The undertaking is a consensual document and it is the common intent of the parties in giving and accepting the obligations therein, as reasonably construed in the light of the context, which determines its effect. The appellant submits that the undertaking does not cover an opposition to a creditor's petition on the ground that the bankruptcy notice should be set aside. It is said that opposition to a sequestration order under s 52 of the Act raises some different considerations to those relevant to an application to set aside a bankruptcy notice under s 40. This can be accepted. 14 However, in the context of this litigation, the Consent Orders were intended to and in terms require the appellant to refrain from any further challenges to the bankruptcy notice in whatever form and at whatever stage such challenge is made. The procedure to oppose the petition involves filing a Notice of Opposition and an Affidavit: see O 77 r 11 of the Federal Court (Bankruptcy) Rules . The purpose of the undertaking is that no steps will be taken to challenge the notice as a condition of the respondent's agreement to extend the time for compliance until a decision is made on the strike out application. There is an inconsistency between an undertaking not to take proceedings to set aside the bankruptcy notice yet to reserve a right to achieve the same result under the discretionary power given in s 52(2). The undertaking does not limit the expression 'proceedings' to one under s 40 of the Act . It commits the appellant not to take any proceedings which produce the result of effectively setting aside the notice for this reason. I do not accept the submission of the appellant on this second issue. This discretionary power is broad. 16 The onus is on the appellant to establish "sufficient cause". The appellant relies on outstanding costs orders against the respondent which have been made but which have not been taxed. The appellant relies on the evidence of a costs expert that the total amount will exceed the debt in the bankruptcy notice. 17 A similar argument was not successful on the application to set aside the bankruptcy notice before Registrar Tesoriero. The respondent refers to judgments and orders for costs untaxed in other proceedings, which are said to exceed the costs referred to by the appellant. The potential claim of the appellant for costs is said to be in the order of an amount less than $20,000.00, whereas there is an outstanding judgment in favour of the respondent for $240,512.51 exclusive of costs. 18 Having regard to the consent undertaking, the judgments referred to in submissions, and the relative costs awards together with the outstanding judgment sum of $240,512.51, the appellant has not satisfied me that there is "other sufficient cause" which would warrant dismissal of the petition. It is not necessary for me to consider, as a matter of law, whether the undertaking precludes the appellant from raising this issue, but it clearly is an important matter for consideration when contemplating the exercise of the statutory discretion. Counsel does not submit that there is any direct evidence from the appellant that he was misled as to the creditor. Nor is there any suggestion that the appellant made any attempt to pay the outstanding monies as required by the bankruptcy notice. Nevertheless, it is contended by the appellant that the judgment debtor must not be left in any reasonable doubt as to the identity of the judgment creditor. 20 Counsel for the appellant submits that there was reasonable doubt in this case having regard to the following circumstances. The respondent says that the agreements it sues on were on entered into on 21 September 1995 and 1 October 1995, at a time when Mr Leonard Cohen was a sole trader carrying on business under the name "Leonard Cohen & Co." On 1 November 2005, Messrs Georgiou and Vertannes joined the partnership. 21 The evidence of Mr Georgiou in an affidavit signed on 17 May 2005 is that it was a term of the partnership agreement that the partnership assumed all rights and obligations of Mr Cohen's existing practice as from 1 November 1995, excluding debtors to whom accounts had been rendered prior to 1 November 1995. Mr Georgiou notes that included in the rights and obligations were all the rights and obligations pursuant to the agreement entered into on 21 September 1995 between Leonard Cohen & Co and the appellant. He states that on 1 November 1995, the respondent further assumed all rights and obligations in relation to the written retainer agreement entered into on that day. On 8 December 1995, a Statement of Change in Registered Particulars was registered reflecting the change as to owners of the business name. 22 The work which is the subject of the relevant claim was carried out by the firm from September 1995 and ceased in February 1998, when instructions were withdrawn. When the first writ was issued on 17 March 2000, the three above named persons traded as "Leonard Cohen & Co." The writ in respect of which the relevant costs order was made was issued when Messrs Georgiou and Vertannes owned the company name. 23 On 30 June 2003, Mr Cohen ceased to be a co-proprietor of the business name, but there is evidence that the partnership with Messrs Georgiou and Vertannes was continued for limited purposes, presumably in order to wind up all the affairs of the partnership, including collection of all debts. 24 The appellant says that there was reasonable doubt in his mind as to the identity of the creditor, and that therefore the notice is a nullity. The question is whether a reasonable person in the position of the appellant would have been misled. 25 It is common ground that a firm can bring bankruptcy proceedings in the firm name under s 307 of the Act , and that a change in the composition of the firm does not invalidate the bankruptcy notice: Anderson Rice v Bride (1995) 61 FCR 529 and 542. The Full Court in Anderson Rice noted that it is the duty of the debtor to seek out and to pay the judgment creditor, if the creditor is in Australia: James v Federal Commissioner for Taxation [1955] HCA 75 ; (1955) 93 CLR 631 at 639. This reasoning is applicable in the present case. 26 I am not persuaded that there was any basis on which it could be established that the appellant had any reasonable ground to doubt that those parties constituting the firm under the name Leonard Cohen & Co obtained the rights to remuneration and obligations in respect of work during September 1995 through February 1998, or that they were the proprietors of the firm entitled to recover the fees. At all relevant times in this period, the partnership was constituted by Mr Cohen and as from 1 November 2005, with retrospective effect, the firm included Messrs Cohen, Georgiou and Vertannes. 27 I note that the bankruptcy notice of 13 January 2005 referred to "Leonard Cohen & Co" and gave the address of that firm. It also stated that payment could be made to Stewart Forbes, Barrister and Solicitor at 16 Irwin Street, Perth and the evidence indicates that no attempt was made to proffer any such payment. The Notice also specifies that Mr Forbes, who issued the notice, was the agent of the creditors. 28 The evidence does not establish that the appellant was misled as to the persons to whom he should pay the debt, nor that he had any reasonable doubt as to when the work was done or that such work included work up to February 1998. He could have made payment to Stewart Forbes and this would have satisfied the Notice. Accounting between the parties as to the allocation of the payment was a matter for them. 29 This case is in no way comparable the facts in McWilliam v Jackson [2000] FCA 175 ; (2000) 96 FCR 561 where the creditor was identified in the notice as "Anthony Jackson & Others. " The reference to "others" in that case was open-ended and uncertain on its face. 30 I do not accept this final ground. Furthermore, I consider that it is contrary to the undertaking given by the appellant. 31 For the above reasons this appeal is dismissed with costs. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin. | appeal from sequestration order of federal magistrate construction and effect of undertaking given by appellant in form of consent orders whether appellant's undertaking to not take proceedings to set aside bankruptcy notice covers opposition to creditor's petition whether "sufficient cause" exists under s 52(2)(b) of the bankruptcy act 1966 (cth) to warrant dismissal of creditor's petition whether there exists reasonable doubt as to the identity of creditor. bankruptcy |
On 4 September 2008, the Administrative Appeals Tribunal (the AAT) affirmed a decision of the Social Security Appeals Tribunal (SSAT) of 23 November 2007. The SSAT found that the decision of the authorised review officer of Centrelink of 27 September 2007 to cancel Mr Zoia's Newstart allowance from 24 July 2007 was correct. The AAT affirmed that decision. In that hearing, Mr Zoia had sought an adjournment of his hearing on the basis that he did not want the AAT to make a decision in the matter but that he wanted the Minister for Centrelink to do so. The AAT declined that application for an adjournment on the basis that it had a duty to make a decision. The relevant issues before the AAT were: Section 605(2) and (3) of the Social Security Act 1991 (Cth) (the SS Act) provides that the Secretary can require a person who has entered into a Newstart Activity Agreement to enter a new agreement by giving a person notice of the requirement and the place and time the agreement is to be negotiated. Such notices were sent to Mr Zoia. Mr Zoia acknowledged that in response he had attended at Centrelink offices several times but that he did not sign the Agreement despite a number of requests to do so. He was also warned of the consequences of failing to sign the Agreement but declined to do so. The AAT concluded that Mr Zoia by his own admissions made at the AAT acknowledged that he had no reasonable excuse pursuant to s 626 of the SS Act for not entering into the Newstart Activity Agreement. At the heart of Mr Zoia's appeal as best one can discern it is the argument that his Newstart allowance should not have been cancelled as there was no power to compel him to sign the new Newstart Activity Agreement. On the occasion of that hearing (which was to be the hearing of the appeal) it had been necessary to adjourn the substantive hearing of the appeal in order to consider Mr Zoia's argument that the appeal was a nullity. While the discussion which ensued at that hearing could have no possible bearing on the substantive appeal, the starting time of the appeal was nevertheless deferred to permit Mr Zoia the opportunity to read the transcript. At the re-listed hearing of the appeal on 5 August 2009 Mr Zoia sought to re-agitate the issues dealt with in that interlocutory hearing. I did not permit that course. Mr Zoia sought a further adjournment of the hearing of the appeal on two grounds. The respondent opposed the application. The first ground was that he has sought access to a transcript of a directions hearing in which orders had been made pursuant to O 53 of the Federal Court Rules dealing with the procedural aspects of the appeal. In particular, he complained that he did not know what was involved in the settling of an appeal book index. To the extent that access to that transcript was required, it would inevitably have occasioned an adjournment because no transcript had been produced. I will assume that there is a recording in existence of that directions hearing which was conducted in October 2008. A further adjournment would not have been in the interests of justice. Mr Zoia apparently did not attend on the adjourned appointment for the settling of his appeal book index. I was informed by counsel for the respondent, and accept, that in light of his non-attendance, the respondent ensured that all of the material that had been before the AAT was made available in the appeal book for this hearing. In those circumstances, Mr Zoia was unable to identify and I was unable to discern any prejudice which would have been occasioned to him by proceeding with the hearing of the appeal. I also note, as submitted by counsel for the respondent, that Mr Zoia is no stranger to litigation and, in particular, has previously been involved in at least one appeal from the AAT and has some familiarity with the process. The second ground on which Mr Zoia sought an adjournment was in order to obtain legal advice. I accept Mr Zoia's argument that he is not well versed in the law. But I also concluded that the interests of justice did not support the granting of a further adjournment for the following grounds and I declined to permit it. Mr Zoia made a further application for legal assistance to the Attorney-General's Department which was rejected in March this year on the basis that the view was formed that his appeal did not appear to have sufficient prospects of success. As late as July this year following the adjournment of the first return date for the hearing of the appeal (too late in my opinion) he pursued a further application knowing, however, that the matter was listed for hearing on 5 August 2009. There is little reason to think that that late application would have met with success, that is to say, that the Attorney-General would have formed a contrary view to that expressed some months ago as to the prospects of success of the appeal. Steps were taken last year to endeavour to find a pro bono legal practitioner to advise Mr Zoia in relation to his appeal. Those steps were unsuccessful. As will be evident from the reasons which follow, the grounds of appeal on their face are barely intelligible and Mr Zoia's argument in support of them which has been raised at previous interlocutory hearings is equally lacking in clarity. On the other hand, Mr Zoia has raised similar points to those which he seemingly wishes to raise in this appeal in an appeal which is the subject of a decision by Siopis J in Zoia v Secretary, Department of Employment and Workplace Relations [2008] FCA 988. Mr Zoia was self-represented and argued that appeal himself apparently with sufficient ability to at least convey to his Honour part of the nature of his complaint. His Honour having ruled against him on that complaint already, it is not particularly surprising that Mr Zoia's attempts to obtain legal assistance have not met with success. On the basis therefore of delay in bringing the oral application, or the repetition of earlier argument which had been rejected and that a reasonable opportunity had been given already to attempt to obtain legal representation, the request for a further adjournment for that purpose was declined. The appeal therefore proceeded. On a number of occasions in the course of argument on the appeal, Mr Zoia indicated that he would like leave to appeal to the High Court to ventilate both the need for legal counsel and certain constitutional arguments. I made it clear to Mr Zoia that if his appeal before me was unsuccessful, he would have the opportunity to appeal to the Full Federal Court and a further opportunity from there if he was unsuccessful again, to seek leave to appeal to the High Court. It was made clear to Mr Zoia that it was not within my power to grant him leave to appeal to the High Court. In Platcher v Joseph [2004] FCAFC 68 , the Full Court (at [104]-[106]) addressed the several authorities on this topic. In a civil case, the balance between affording assistance to an unrepresented party and not conferring an advantage on that party is to be observed. The degree of assistance necessary will vary according to the circumstances (at [105]). Consistently with the approach suggested by these authorities, the notice and grounds of appeal needed a deal of interpretation to be understood. The pursuit of that course has been attempted. The Constitution of the Commonwealth of Australia. The High Court Judgment --- Huddart, Parker & Co Pty Ltd v Moorehead [1909] HCA 36 ; (1909) 8 CLR 330. Failed Justice. Failed Natural Justice. Failed Magna Carta, any charter guaranteeing liberty, any fundamental constitution or law guaranteeing rights. My Unemployment Benefits was cancel on Peter Langley information. I said to Peter, could you make the date after the hearing. Set the decision aside and substitute a new decision, that is despot justice, and also make them judge and jury. Set the decision aside, cancel, and substitute a new decision, that new decision can not be cancel. ARO, Brenda Parker can not correct a deception. Centrelink was trying to collect a debt from me. Constitution 64. can not be delegated. This month at Max Employment, I was told, a Lawyer can get it but I can't. About Peter Langley information or notes. Federal Court Rules --- Pro Bono Publico. The Hon Court to summon Peter Langley to give his information. Secretary, Department of Employment and Workplace Relations to be changed to Minister, for Centrelink, under Constitution 64. The Constitution of the Commonwealth of Australia. The High Court Judgment --- Huddart, Parker & Co Pty Ltd v Moorehead [1909] HCA 36 ; (1909) 8 CLR 330. Peter Langley information and notes. 5. Justice and Natural Justice. There is no obvious question of law disclosed in this notice of appeal filed. Although the notice and grounds of appeal together with the oral argument were difficult to comprehend, the main thrust of the complaint raised by Mr Zoia was that there was no power on the part of the respondent or anyone else to compel him to sign an agreement before paying him a Newstart allowance. This appears to be similar to one of the arguments that was advanced without success before Siopis J in Zoia [2008] FCA 988. There has been no appeal from that decision although Mr Zoia did contend before me that it was incorrect. The second aspect of the argument appears to be that, in fact, Mr Zoia had indicated that he was prepared to sign the agreement notwithstanding his primary position that he was not obliged to do so and that his willingness to sign the agreement was not taken into account. As to this argument, there was no evidence in support of this suggestion but, in any event, it could not constitute any reviewable error of law on the part of the AAT. There were subsidiary issues which I have also endeavoured to address. That is so in this instance. There is no freedom 'to do as one please(s)' to be found in the Constitution . Nor is there a charter guaranteeing a subject's liberty. Those who framed the Australian Constitution accepted the view that individual rights were on the whole best left to the protection of the common law and the supremacy of parliament. Thus the Constitution deals, almost without exception, with the structure and relationship of government rather than with individual rights. The fetters which are placed upon legislative action are, for the most part, for the purpose of distributing power between the federal government on the one hand and State governments on the other, rather than for the purpose of placing certain matters beyond the reach of any parliament. The Constitution does not contain a Bill of Rights . Indeed, the 1898 Constitutional Convention rejected a proposal to include an express guarantee of individual rights based largely upon the Fourteenth Amendment to the United States Constitution and including a right to due process of law and the equal protection of laws. The framers preferred to place their faith in the democratic process for the protection of individual rights and saw constitutional guarantees as restricting that process . In Higgins v Commonwealth (1998) 79 FCR 528 , Finn J considered the scope of the power of the Commonwealth to provide unemployment benefits. The "sufficiency of [s 634's] connection" with the head of power - cf Leask v Commonwealth [1996] HCA 29 ; (1996) 140 ALR 1 at 33 - is incontrovertible. The power to provide such benefits must, I consider, include at its "core" ... powers (a) to stipulate qualifications for entitlement to, and for continuing entitlement to, unemployment benefits; and (b) to impose disqualifications (temporary or permanent) on entitlement to ... or continuing entitlement to ... unemployment benefits. The requirements prescribed by the SS Act are to be satisfied before such support is given. As found in Higgins 79 FCR 528 , it is within the Parliament's legislative power to impose conditions for the qualification and payability of social security payments. There is no support for that contention on the evidence. The applicant was afforded the opportunity to put material before the decision-maker as part of the internal review processes, to present his case to the Social Security Appeals Tribunal and to present his case to the Administrative Appeals Tribunal (the AAT). The argument as to a lack of natural justice is rejected. Such officers shall hold office during the pleasure of the Governor-General. They shall be members of the Federal Executive Council, and shall be the Queen's Ministers of State for the Commonwealth. As best it can be understood, the applicant's argument appears to be that only the relevant Minister can make a valid decision to cancel a person's Newstart allowance under the SS Act. This argument is incorrect. One of the functions of a Minister of State of the Commonwealth as specified in s 64 of the Constitution is to administer such departments of the Commonwealth as the Governor-General in Council may establish. This is not correct. The broad power of delegation granted to the Secretary in s 234 of the Social Security (Administration) Act 1999 makes this clear. See also s 126(3) and s 149 of that Act and s 43(1) of the AAT Act which permits review of decisions made under the social security law and to affirm, vary, set aside, substitute a new decision or remit the matter to the Secretary for reconsideration. In my opinion the notice of appeal should be struck out without any further delay and the application dismissed. The time of the Court and of the respondent is not to be taken up by responding to matters which do not contain any intelligible basis upon which the dispute or matter in question can be identified. For the same additional reasons, this application will be dismissed. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher. | appeal from decision of administrative appeals tribunal affirming decision of social security appeals tribunal (ssat) ssat upheld decision of centrelink review officer to cancel the applicant's newstart allowance applicant was required to sign a newstart activity agreement but did not do so whether denial of natural justice whether delegation of decision-making powers valid whether matter should be adjourned further to enable the applicant to obtain legal assistance social security |
"The section does not, however, identify the instrument or authority that has prescribed the period (...TRUNCATED) | extension of times fixed by class order whether permissible under s 1322(4)(d) corporations |
"In a related application concerning Australian Capital Reserve Limited (Administrators Appointed) ((...TRUNCATED) | "second extension of convening period for second meeting of creditors of companies in administration(...TRUNCATED) |
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