mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Jones v Dunkel (1959) 101 CLR 298
Outcome: applied
In those circumstances, the failure to call either the inspectors or Mr McGuinness permits me more comfortably to draw the inference to which I have already referred viz that the statement of reasons of 22 October 2008 does not reflect the true basis for the actions of the inspectors on 10 October 2008 when they gave the direction: Jones v Dunkel (1959) 101 CLR 298 at 308 per Kitto J, 312 per Menzies J, and 320-321 per Windeyer J. I so conclude. It follows that I do not think that any reliance should be placed upon those reasons. 72 In this case, however, there is nothing in the letter of 10 October 2008 to indicate what the conflict was between the accounts of the Applicants, why those conflicts mattered or what it was that made it necessary for Atanaskovic Hartnell to be excluded. An inference is open that because those matters are not dealt with in the letter of 10 October 2008 that the inspectors did not, in fact, turn their minds to those matters. I may more readily draw that inference in circumstances where the inspectors did not give evidence before me as to these matters: Jones v Dunkel (1959) 101 CLR 298 at 308 per Kitto J, 312 per Menzies J, and 320-321 per Windeyer J. 73 I am conscious that ASIC subsequently produced a set of reasons on 22 October 2008. I have previously come to the conclusion that this set of reasons is not to be given any weight. Be that as it may, it might be thought that a belief on ASIC or the inspectors' parts that the second set of reasons would stand as the reasons for the direction may provide an explanation as to why no evidence was given by the inspectors or Mr McGuinness as to their grounds for the giving of the direction on 10 October 2008. If that explanation were to be accepted as legitimate it would prevent the drawing of the inference to which I have referred. I do think that it is possible that the second set of reasons provides some explanation for the absence of evidence from the inspectors or Mr McGuinness. However, it is difficult to know whether that it so or whether the decision not to call them was made by other people for possibly other reasons. 74 Ultimately, I think that it would be conjecture on my part to conclude that the reason the inspectors and/or ASIC did not give evidence about the grounds underpinning the letter of 10 October 2008 was because they, or their advisers, believed that the second set of reasons would perform that function for them. In that circumstance, I do not think that I can accept such a view as a sufficient or adequate reason for their not having been called such as would prevent the drawing of the inference to which I have referred. Accordingly, the only grounds that the inspectors had were the grounds set out in the letter of 10 October 2008, and those grounds were not adequate in the requisite sense.
Case: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 29 ; (1998) 194 CLR 355
Outcome: applied
Other provisions in Division 2 of Part 3 of the ASIC Act observe a distinction between ASIC on the one hand and the inspectors on the other. ASIC has the powers and functions explicitly conferred on it by ss 19(1) , 19 (2), 25 and 27 (2). By contrast, an inspector has functions and powers conferred on him or her by ss 21(1) , 21 (3), 22 (1), 23 (2), 24 (1), 24 (2)(a) and 24 (2)(b). If, as ASIC submits, all of the powers and functions of an inspector derive from the power conferred on ASIC by s 19(2) , then this distinction between an inspector and ASIC in Division 2 of Part 3 is merely a textual oddity having no significance. That view is contrary to the general principle of statutory construction that in construing a set of provisions each word must be given meaning: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 29 ; (1998) 194 CLR 355 at 382 per McHugh, Gummow, Kirby and Hayne JJ. For those reasons, on its proper construction s 22(1) confers a power on an inspector in his or her own right and not upon ASIC. 36 This means that ASIC's arguments that it gave the direction in question and that it had authority to do so must both be rejected. This conclusion has two consequences. First, the proper respondents to these proceedings are the inspectors themselves and not ASIC. Secondly, the inspectors were, in fact, clothed with authority to give the direction by s 22(1). For present purposes this means that the Applicants' claim against ASIC must be dismissed. 37 Sections 22 and 23 of the ASIC Act provide: 22 Examination to take place in private (1) The examination must take place in private and the inspector may give directions about who may be present during it, or during a part of it. (2) A person must not be present at the examination unless he or she: (a) is the inspector, the examinee or a member; or (b) is a staff member approved by ASIC; or (c) is entitled to be present by virtue of: (i) a direction under subsection (1); or (ii) subsection 23(1). Penalty: 10 penalty units or imprisonment for 3 months, or both. (3) Subsection (2) is an offence of strict liability. Note: For strict liability , see section 6.1 of the Criminal Code . 23 Examinee's lawyer may attend (1) The examinee's lawyer may be present at the examination and may, at such times during it as the inspector determines: (a) address the inspector; and (b) examine the examinee; about matters about which the inspector has examined the examinee. (2) If, in the inspector's opinion, a person is trying to obstruct the examination by exercising rights under subsection (1), the inspector may require the person to stop addressing the inspector, or examining the examinee, as the case requires. Note: Failure to comply with a requirement made under this subsection is an offence (see section 63). (3) An offence under subsection 63(4) relating to subsection (2) of this section is an offence of strict liability. Note: For strict liability , see section 6.1 of the Criminal Code .
Case: Macquarie Advisory Group Pty Ltd (rec apptd) v Australian Securities and Investments Commission (1999) 33 ACSR 106
Outcome: considered
In Stockbridge v Ogilvie (1993) 43 FCR 244 examinees sought judicial review of a direction given by an inspector appointed by the Australian Securities Commission to exclude their lawyer. French J appeared to assume (at 254), without debate, that the right created by s 23(1) was conferred on the examinee's lawyer although it may be admitted that this is far from clear. In Macquarie Advisory Group Pty Ltd (rec apptd) v Australian Securities and Investments Commission (1999) 33 ACSR 106 at 108 [6] the parties, and Byrne J, assumed that the right was conferred on the examinee. In Gangemi v Australian Securities and Investments Commission [2003] FCA 494 ; (2003) 129 FCR 284 at 297 [38] French J assumed without discussion that the right was conferred on the examinee. 65 For completeness, it is to be noted that ASIC had a similar inference drawn against it for failing to put on evidence as to the decision-making process in Bell 32 FCR 517 at 525 per Lockhart J, 531 per Sheppard J and, arguably, at 533 per Burchett J. Further, such evidence was put before the Court in Macquarie Advisory Group Pty Ltd v Australian Securities and Investments Commission (1999) 33 ACSR 106 at 108 [8] per Byrne J and in Gangemi v Australian Securities and Investments Commission [2003] FCA 494 ; (2003) 129 FCR 284 at 290-291 [19] - [20] per French J. Whilst it is true that in both Gangemi and Stockbridge that the reasons of the inspectors were before the Court it is also true that those reasons were delivered contemporaneously with the direction. The significance of such evidence in the present case was obvious, therefore, not only because the Applicants explicitly signalled their intention to doubt the usefulness of the statement of reasons of 22 October 2008 but also from the course of authorities dealing with s 22(1).
Case: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611
Outcome: cited
Where, as here, it is alleged that ASIC has acted outside its power in making an exclusion direction under s 22(1), ASIC is required to prove that the making of the order was "necessary" in the sense used in Bell . The reasonable necessity is based on the views of the inspector if it appears necessary to the inspector then that will suffice provided that his or her belief is reasonably held. Put another way, the encroachment of the power in s 22(1) into the field of operation of s 23(1) is subject to a condition precedent, namely, the satisfaction of the inspector that the encroachment is necessary. And, of course, it is not to be presumed that Parliament intended that the inspector's view could be formed capriciously hence, not only must be the opinion be formed but is must be reasonably held: cf. Buck v Bavone [1976] HCA 24 ; (1976) 135 CLR 110 at 118-119 per Gibbs J; Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611 at 654 per Gummow J; Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5 ; (2000) 199 CLR 135 at 150 [34] per Gleeson CJ, Gummow, Kirby and Hayne JJ.
Case: Nicopoulos v Commissioner for Corrective Services [2004] NSWSC 562 ; (2004) 148 A Crim R 74
Outcome: referred to
Where confidential but prejudicial information is taken into account by a decision-maker, the Court may fashion its own procedures to determine whether the nature of the information is such as to reduce the obligation of procedural fairness to nothing: Nicopoulos v Commissioner for Corrective Services [2004] NSWSC 562 ; (2004) 148 A Crim R 74 at [100] - [104] per Smart AJ; Hussain v Minister for Foreign Affairs [2008] FCAFC 128 ; (2008) 169 FCR 241 at 275-276 [143] - [144] per Weinberg, Bennett and Edmonds JJ. However, the difficult issues which may arise in that context were not ventilated in the present proceedings.
Case: Public Service Board of New South Wales v Osmond [1986] HCA 7 ; (1986) 159 CLR 656
Outcome: cited
Mr Halley submitted that Bell was better understood as a case where the evidential burden was shifted to the Commission by the paucity of the reasons it initially proffered: cf. Public Service Board of New South Wales v Osmond [1986] HCA 7 ; (1986) 159 CLR 656 at 663-664 per Gibbs CJ with whom Wilson, Brennan and Dawson JJ agreed. There is no doubt that Sheppard J approached the matter on that basis: see Bell 32 FCR 517 at 531. However, I do not think it was the way in which Lockhart and Burchett JJ approached it.
Case: Ryan v Australian Securities and Investments Commission (2007) 158 FCR 301
Outcome: distinguished
I have already set out s 23(1) and my conclusion that it confers a right on the examinee's lawyer and not the examinee. That right is sufficient to attract the rules of procedural fairness: Annetts v McCann [1990] HCA 57 ; (1990) 170 CLR 596 at 598 per Mason CJ, Deane and McHugh JJ. ASIC argued that the exercise of investigative powers was not generally subject to the rules of procedural fairness. It instanced Ryan v Australian Securities and Investments Commission (2007) 158 FCR 301 at 317-323 [53]-[72] per Gyles J. The decision under challenge in that case, however, was a decision by ASIC to confer "eligible applicant" status on a person. The only effect of that was to permit such a person to apply for the issue of examination summonses which might result in the examination of a person. Gyles J ultimately held (at 321 [67]): In my opinion, the initiation of the exercise of a statutory power of an investigatory nature will not normally "destroy, defeat or prejudice" (to use the words from Annetts v McCann [1990] HCA 57 ; 170 CLR 596) or "imperil" (to use Meagher J's word) any relevant right or interest such as to require notice to be given to the object prior to exercise of the power. In any event, where, as here, the exercise of a power is anterior to that which has a direct effect upon the party, there is no such requirement.
Case: Stockbridge v Ogilvie (1993) 43 FCR 244
Outcome: considered
In Stockbridge v Ogilvie (1993) 43 FCR 244 examinees sought judicial review of a direction given by an inspector appointed by the Australian Securities Commission to exclude their lawyer. French J appeared to assume (at 254), without debate, that the right created by s 23(1) was conferred on the examinee's lawyer although it may be admitted that this is far from clear. In Macquarie Advisory Group Pty Ltd (rec apptd) v Australian Securities and Investments Commission (1999) 33 ACSR 106 at 108 [6] the parties, and Byrne J, assumed that the right was conferred on the examinee. In Gangemi v Australian Securities and Investments Commission [2003] FCA 494 ; (2003) 129 FCR 284 at 297 [38] French J assumed without discussion that the right was conferred on the examinee. 45 Only one judge (Sheppard J) has considered the matter in any detail. The statements by French J in Stockbridge and Gangemi do not appear to me to be intended to be taken as considered statements on the question and the statement by Byrne J is certainly not. 54 The opinion which matters is that of the inspector. The only issue for the Court is whether that opinion is held on reasonable grounds and in good faith. Once that threshold is passed, the fact that the Court might not have made the direction itself is of no moment because the state of satisfaction which expands the operation of s 22(1) into the domain of s 23(1) is that of the inspector and not that of the Court: cf. Gangemi v Australian Securities and Investments Commission [2003] FCA 494 ; (2003) 129 FCR 284 at 297 [39] per French J; Stockbridge v Ogilvie (1993) 43 FCR 244 at 255 per French J. 65 For completeness, it is to be noted that ASIC had a similar inference drawn against it for failing to put on evidence as to the decision-making process in Bell 32 FCR 517 at 525 per Lockhart J, 531 per Sheppard J and, arguably, at 533 per Burchett J. Further, such evidence was put before the Court in Macquarie Advisory Group Pty Ltd v Australian Securities and Investments Commission (1999) 33 ACSR 106 at 108 [8] per Byrne J and in Gangemi v Australian Securities and Investments Commission [2003] FCA 494 ; (2003) 129 FCR 284 at 290-291 [19] - [20] per French J. Whilst it is true that in both Gangemi and Stockbridge that the reasons of the inspectors were before the Court it is also true that those reasons were delivered contemporaneously with the direction. The significance of such evidence in the present case was obvious, therefore, not only because the Applicants explicitly signalled their intention to doubt the usefulness of the statement of reasons of 22 October 2008 but also from the course of authorities dealing with s 22(1). 78 The question of whether the power in s 22(1) attracts a procedural fairness obligation has received little consideration. Sheppard J in Bell (32 FCR 516 at 532) thought that such an obligation did exist. Neither Lockhart nor Burchett JJ considered the issue. None of the decisions in Re Macquarie Advisory Group Ltd (33 ACSR 106), Stockbridge (43 FCR 244) or Gangemi (129 FCR 284) deals with the question.
Case: Deputy Commissioner of Taxation v Mutton (1988) 79 ALR 509
Outcome: cited
Deputy Commissioner of Taxation v Mutton (1988) 79 ALR 509 at 512 Mahoney JA said: In the end, what the court does when it decides whether there is a 'contrary intention' is to decide whether it was the intention of the legislature that the statutory provision as to interpretation or definition should apply to the particular section: see Gibb v FCT [1966] HCA 74 ; (1966) 118 CLR 628 at 635. The legislative intention may, perhaps, be more easily seen ... where the statutory definition adds to or subtracts from what, apart from the definition, would be the meaning of the particular word in the statutory command: see, eg, R v Brewer [1942] HCA 33 ; (1942) 66 CLR 535 ; YZ Finance Co Pty Ltd v Cummings [1964] HCA 12 ; (1964) 109 CLR 395. Aided by the 1999 Memorandum, I have determined that the entity referred to in s 152-30(2)(a) as "the other entity" does not include a partnership. Since s 152-30 defines when one entity is connected to another for the purposes of s 152-15(a)(ii), a partnership is not an "entity" for the purposes of par (a)(ii). It follows from the determination that a partnership is not an entity for the purpose of those provisions, that it was not the intention of the legislature that par (d) of the definition of "entity" in s 960-100 should apply to those provisions. Accordingly a contrary intention appears for the purposes of s 995. I answer the preliminary question: Is a partnership an "entity" within the meaning of that term as used in s 152-15(a)(ii) of the Act? No. I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg. Associate: Dated: 18 August 2009 Counsel for the Applicant: F O'Loughlin Solicitor for the Applicant: Hall &amp; Wilcox Counsel for the Respondent: A Broadfoot Solicitor for the Respondent: Gadens Lawyers Date of Hearing: 28 July 2009 Date of Judgment: 18 August 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/880.html
Case: Anglo-Cyprian Trade Agencies Ltd v Paphos Wine Industries Ltd (1951) 1 All ER 873
Outcome: cited
As noted by McHugh J in Oshlack 193 CLR at 97, the traditional exceptions to the usual order as to costs focussed on the conduct of the successful party where its conduct disentitled it to the beneficial exercise of the judicial discretion. His Honour in that case cited Anglo-Cyprian Trade Agencies Ltd v Paphos Wine Industries Ltd (1951) 1 All ER 873 at 874 where Devlin J said: "No doubt, the ordinary rule is that, where a plaintiff has been successful, he ought not to be deprived of his costs, or, at any rate, made to pay the costs of the other side, unless he has been guilty of some sort of misconduct."
Case: Australian Competition and Consumer Commission v Commercial and General Publications Pty Ltd (No 2) [2002] FCA 1349
Outcome: distinguished
The applicant referred in its submissions to the finding of the Full Court in Griffiths [2006] FCAFC 196 ; 157 FCR 112 and a number of cases to which reference was made by the Full Court in Griffiths 157 FCR at 116, namely: &#8226; Holder v Searle (1998) 44 IPR 1 &#8226; Brimaud v Boston Securities Entertainment Investments Pty Ltd [1998] FCA 1392 &#8226; Esso Australia Resources Ltd v Federal Commissioner of Taxation (1997) 144 ALR 458 &#8226; Inn Leisure Industries Pty Ltd (Provisional liquidator appointed) v DF McCloy Pty Ltd (No 1) (1991) 28 FCR 151 &#8226; Australian Competition and Consumer Commission v Commercial and General Publications Pty Ltd (No 2) [2002] FCA 1349. 21 Further, in relation to the other cases cited by the applicant, as the Full Court observed in Griffiths 157 FCR at 116: &#8226; in Holder v Searle 44 IPR 1 where the prosecution failed in two of the three informations it proffered against the defendant, and was only partially successful in respect of the remaining information, Spender J ordered that the prosecutor pay one-third of the defendant's costs &#8226; in Brimaud [1998] FCA 1392 where the applicant was successful in one of three claims against the respondents, and in respect of one of the unsuccessful claims the extent to which the length of the case was increased by the conduct of that issue was not insignificant, Emmett J ordered that the respondents pay 15% of the applicant's costs of the proceedings &#8226; in Esso 144 ALR 458 where the taxpayer's success overall was slight, Sundberg J made a broad-brush global order as to costs, determining that the taxpayer should pay five-sixths of the respondent's costs, and the respondent one-sixth of the taxpayer's costs &#8226; in Inn Leisure Industries 28 FCR 151 the applicant succeeded in one of three claims, however the Court considered in the circumstances of the case that the applicant should recover three-quarters of the costs of the application &#8226; in ACCC v Commercial and General Publications [2002] FCA 1349 , Heerey J observed that three-quarters of the trial was taken up with charges which were dismissed, and awarded the defendant half its costs.
Case: Australian Conservation Foundation Incorporated v The Commonwealth of Australia [1979] HCA 1 ; (1980) 146 CLR 493
Outcome: cited
First, it is clear from a number of cases that the fact that the case is a human rights and/or discrimination case does not of itself automatically characterise the proceedings as being in the public interest with the result that the court should divert from usual orders as to costs ( Sluggett v HREOC [2002] FCA 1060 and Fetherson v Peninsula Health (No 2) [2004] FCA 594). Similar considerations apply where, for example, the proceedings are instituted by a litigant with a view to protection of the environment ( Australian Conservation Foundation Incorporated v The Commonwealth of Australia [1979] HCA 1 ; (1980) 146 CLR 493; Save the Ridge Inc v Commonwealth (2006) 230 ALR 411). 31 Fifth, the fact that the applicant's claim was dismissed for want of standing distinguishes this case from cases such as Oshlack [1998] HCA 11 ; 193 CLR 72 and Ruddock v Vadarlis [2001] FCA 1865 ; 115 FCR 229, where the plaintiff did have standing and the merits of the case could be properly explored by the Court. Unlike in those cases, in the case before me issues of substance were not ultimately resolved. In this context I note comments of Aickin J in Australian Conservation Foundation 146 CLR at 512.
Case: Brimaud v Boston Securities Entertainment Investments Pty Ltd [1998] FCA 1392
Outcome: distinguished
The applicant referred in its submissions to the finding of the Full Court in Griffiths [2006] FCAFC 196 ; 157 FCR 112 and a number of cases to which reference was made by the Full Court in Griffiths 157 FCR at 116, namely: &#8226; Holder v Searle (1998) 44 IPR 1 &#8226; Brimaud v Boston Securities Entertainment Investments Pty Ltd [1998] FCA 1392 &#8226; Esso Australia Resources Ltd v Federal Commissioner of Taxation (1997) 144 ALR 458 &#8226; Inn Leisure Industries Pty Ltd (Provisional liquidator appointed) v DF McCloy Pty Ltd (No 1) (1991) 28 FCR 151 &#8226; Australian Competition and Consumer Commission v Commercial and General Publications Pty Ltd (No 2) [2002] FCA 1349. 21 Further, in relation to the other cases cited by the applicant, as the Full Court observed in Griffiths 157 FCR at 116: &#8226; in Holder v Searle 44 IPR 1 where the prosecution failed in two of the three informations it proffered against the defendant, and was only partially successful in respect of the remaining information, Spender J ordered that the prosecutor pay one-third of the defendant's costs &#8226; in Brimaud [1998] FCA 1392 where the applicant was successful in one of three claims against the respondents, and in respect of one of the unsuccessful claims the extent to which the length of the case was increased by the conduct of that issue was not insignificant, Emmett J ordered that the respondents pay 15% of the applicant's costs of the proceedings &#8226; in Esso 144 ALR 458 where the taxpayer's success overall was slight, Sundberg J made a broad-brush global order as to costs, determining that the taxpayer should pay five-sixths of the respondent's costs, and the respondent one-sixth of the taxpayer's costs &#8226; in Inn Leisure Industries 28 FCR 151 the applicant succeeded in one of three claims, however the Court considered in the circumstances of the case that the applicant should recover three-quarters of the costs of the application &#8226; in ACCC v Commercial and General Publications [2002] FCA 1349 , Heerey J observed that three-quarters of the trial was taken up with charges which were dismissed, and awarded the defendant half its costs.