NARE v Minister for Immigration - [2004] FCA 554

FEDERAL COURT OF AUSTRALIA
Spalla v St George Motor Finance Ltd (ACN 007 656 555) [2004] FCA 554
ANTHONY PATRICK SPALLA, ANDREW DAVID BENTLEY STILL, IRLMOND PTY LTD (ACN 066 314 870) (RECEIVERS AND MANAGERS APPOINTED; IN LIQUIDATION) -v- ST GEORGE MOTOR FINANCE LTD (ACN 007 656 555), ST GEORGE WHOLESALE FINANCE PTY LTD (ACN 001 834 886), ANDREW WILLIAM BECK, ANDREW STEWART HOME, DELOITTE TOUCHE TOHMATSU, AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION AND SIMON ALEXANDER WALLACE SMITH
V 3203 of 2002
RYAN J
4 MAY 2004
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 3203 of 2002

BETWEEN:

ANTHONY PATRICK SPALLA
First Applicant

ANDREW DAVID BENTLEY STILL
Second Applicant

IRLMOND PTY LTD (ACN 066 314 870) (Receivers and Managers appointed; in liquidation)
Third Applicant

AND:

ST GEORGE MOTOR FINANCE LTD (ACN 007 656 555)
First Respondent

ST GEORGE WHOLESALE FINANCE PTY LTD (ACN 001 834 886)
Second Respondent

ANDREW WILLIAM BECK
Third Respondent

ANDREW STEWART HOME
Fourth Respondent

DELOITTE TOUCHE TOHMATSU
Fifth Respondent

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION
Sixth Respondent

SIMON ALEXANDER WALLACE SMITH
Seventh Respondent

ORDER

JUDGE:

RYAN J

DATE:

4 MAY 2004

PLACE:

MELBOURNE

THE COURT ORDERS THAT:
1.The applicants have leave to file and serve the supplementary submissions dated 23 April 2004 which are exhibit AA-86 to the affidavit of April Arslan sworn 27 April 2004 and filed herein.
2.The respondents have leave to file and serve by 11 May 2004 any written submissions and any further affidavit on which they wish to rely in answer to the written submissions referred to in paragraph 1 of this Order.
3.Liberty be reserved to any party to apply on not less than 48 hours notice in writing to the other parties for leave to cross-examine or further cross-examine the deponent of any affidavit filed herein or otherwise as the party applying may be advised.
4.There be no order as to the applicants’ costs of preparing the supplementary submissions referred to in paragraph 1 of this Order or applying for leave to file and serve the said supplementary submissions.
5.The respondents’ costs of preparing any written submissions or further affidavit referred to in paragraph 2 of this Order and their costs of the application for leave to file and serve the supplementary submissions referred to in paragraph 1 of this Order be reserved.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 3203 of 2002

BETWEEN:

ANTHONY PATRICK SPALLA
First Applicant

ANDREW DAVID BENTLEY STILL
Second Applicant

IRLMOND PTY LTD (ACN 066 314 870) (Receivers and Managers appointed; in liquidation)
Third Applicant

AND:

ST GEORGE MOTOR FINANCE LTD (ACN 007 656 555)
First Respondent

ST GEORGE WHOLESALE FINANCE PTY LTD (ACN 001 834 886)
Second Respondent

ANDREW WILLIAM BECK
Third Respondent

ANDREW STEWART HOME
Fourth Respondent

DELOITTE TOUCHE TOHMATSU
Fifth Respondent

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION
Sixth Respondent

SIMON ALEXANDER WALLACE SMITH
Seventh Respondent

JUDGE:

RYAN J

DATE:

4…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read NARE v Minister for Immigration and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2004] FCA 554
Decision Date: 4 MAY 2004

CaseChat Overview and Summary

In the case of NARE v Minister for Immigration, the applicants sought leave to file and serve supplementary submissions, which were responses to the respondents' arguments. The court was required to decide whether the applicants' supplementary submissions could be filed and served and, if so, what the procedural consequences would be. The applicants argued that the supplementary submissions were necessary to address the respondents' arguments and to ensure a fair hearing. The respondents opposed the application, arguing that the supplementary submissions were an attempt to introduce new material outside of the usual course of proceedings.

The court held that the applicants' application should be granted, allowing the supplementary submissions to be filed and served. The court found that the supplementary submissions were necessary to address the respondents' arguments and to ensure that the applicants had a fair opportunity to respond. The court also held that the respondents should have an opportunity to file and serve their own written submissions and affidavits in response to the supplementary submissions. The court further held that any party should have the liberty to apply for leave to cross-examine or further cross-examine the deponent of any affidavit filed in the proceedings. The court reserved the issue of costs, allowing the parties to apply for costs if necessary.

In summary, the court granted the applicants' application for leave to file and serve supplementary submissions and ordered that the respondents have an opportunity to file and serve their own written submissions and affidavits in response. The court also allowed any party to apply for leave to cross-examine or further cross-examine the deponent of any affidavit filed in the proceedings. The issue of costs was reserved for further application if necessary.

Orders

Orders of the court

1. The applicants have leave to file and serve the supplementary submissions dated 23 April 2004 which are exhibit AA-86 to the affidavit of April Arslan sworn 27 April 2004 and filed herein.

2. The respondents have leave to file and serve by 11 May 2004 any written submissions and any further affidavit on which they wish to rely in answer to the written submissions referred to in paragraph 1 of this Order.

3. Liberty be reserved to any party to apply on not less than 48 hours notice in writing to the other parties for leave to cross-examine or further cross-examine the deponent of any affidavit filed herein or otherwise as the party applying may be advised.

4. There be no order as to the applicants’ costs of preparing the supplementary submissions referred to in paragraph 1 of this Order or applying for leave to file and serve the said supplementary submissions.

5. The respondents’ costs of preparing any written submissions or further affidavit referred to in paragraph 2 of this Order and their costs of the application for leave to file and serve the supplementary submissions referred to in paragraph 1 of this Order be reserved.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY		V 3203 of 2002
BETWEEN:	ANTHONY PATRICK SPALLA First Applicant ANDREW DAVID BENTLEY STILL Second Applicant IRLMOND PTY LTD (ACN 066 314 870) (Receivers and Managers appointed; in liquidation) Third Applicant
AND:	ST GEORGE MOTOR FINANCE LTD (ACN 007 656 555) First Respondent ST GEORGE WHOLESALE FINANCE PTY LTD (ACN 001 834 886) Second Respondent ANDREW WILLIAM BECK Third Respondent ANDREW STEWART HOME Fourth Respondent DELOITTE TOUCHE TOHMATSU Fifth Respondent AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION Sixth Respondent SIMON ALEXANDER WALLACE SMITH Seventh Respondent
ORDER
JUDGE:	RYAN J
DATE:	4 MAY 2004
PLACE:	MELBOURNE