Nicholls as Trustee of the Property of Hills v Hills
[2004] FCA 333
•26 MARCH 2004
FEDERAL COURT OF AUSTRALIA
Nicholls as Trustee of the Property of Hills v Hills [2004] FCA 333
BANKRUPTCY - application to review ruling under s 81(10) of (CTH) Bankruptcy Act 1966 by deputy registrar of Federal Court - nature of decision under review - delegation of judicial power by Federal Court to deputy registrar - validity and nature of delegation - exercise of the federal jurisdiction of the Federal Court - hearing de novo available - refusal of judicial review where more suitable remedy available - power conferred by s 81(12) of (CTH) Bankruptcy Act 1966 exceptional and to be exercised with caution - clear admission of debt - no submission made at examination before deputy registrar as to possible existence of a set-off - application stood over - (CTH) Administrative Decisions (Judicial Review) Act ss - (CTH) Bankruptcy Act 1966 ss 30, 81, 86 - (CTH) Federal Court of Australia Act 1976 ss 35(A) - (CTH) Federal Court Rules O 35A, O 77 rr 7, 28, 29
Bankruptcy Act 1966 s 81(12)
Federal Court Rules O 35A r 5
Administrative Decisions (Judicial Review) Act 1977
Federal Court of Australia Act 1976 (Cth) 35A
Bankruptcy Act 1869 (UK) s 96
Family Court RulesLockwood v Commonwealth (1954) 90 CLR 177 cited
Harris v Caladine (1991) 172 CLR 84 applied
Reg. v Chief Constable; Ex parte Calveley [1986] 1 QB 424 cited
Clark v Wood (1997) 78 FCR 356 distinguished
Ex parte Willey; in re Wright (1883) 23 Ch D 118 referred to
Parren; In re Trustee; Ex parte [1933] B & CR 170 cited
Public Service Board of NSW v Osmond (1986) 159 CLR 656 citedALLAN RICHARD NICHOLLS AS TRUSTEE OF THE PROPERTY OF LANCELOT STANLEY HILLS AND VIEDA ANN HILLS v HARVEY HILLS AND TONY TESORIERO (IN HIS CAPACITY AS A REGISTRAR OF THE FEDERAL COURT OF AUSTRALIA)
N 7329 OF 2003
TAMBERLIN J
SYDNEY
26 MARCH 2004
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N7329 OF 2003
IN THE MATTER OF LANCELOT STANLEY HILLS
AND VIEDA ANN HILLS, BANKRUPTS
BETWEEN:
ALLAN RICHARD NICHOLLS AS TRUSTEE OF THE PROPERTY OF LANCELOT STANLEY HILLS
AND VIEDA ANN HILLS
APPLICANTAND:
HARVEY HILLS
FIRST RESPONDENTTONY TESORIERO (IN HIS CAPACITY AS A REGISTRAR OF THE FEDERAL COURT OF AUSTRALIA)
SECOND RESPONDENTJUDGE:
TAMBERLIN J
DATE OF ORDER:
26 MARCH 2004
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The application be stood over for further directions at 9.30 am on 25 June 2004.
2.The costs of this application be reserved.
3.The stay granted by the Deputy Registrar continue.
4.Liberty to apply on two days’ notice.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N7329 OF 2003
IN THE MATTER OF LANCELOT STANLEY HILLS
AND VIEDA ANN HILLS, BANKRUPTS
BETWEEN:
ALLAN RICHARD NICHOLLS AS TRUSTEE OF THE PROPERTY OF LANCELOT STANLEY HILLS AND
VIEDA ANN HILLS
APPLICANTAND:
HARVEY HILLS
FIRST RESPONDENTTONY TESORIERO (IN HIS CAPACITY AS A REGISTRAR OF THE FEDERAL COURT OF AUSTRALIA)
SECOND RESPONDENT
JUDGE:
TAMBERLIN J
DATE:
26 MARCH 2004
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This is a motion filed on 18 December 2003 in which the applicant on the motion (“Mr Hills”) requests the Court to review a decision made on 9 December 2003 by the second respondent on the motion, Deputy Registrar Tesoriero (“the Deputy Registrar”), under s 81(12) of the Bankruptcy Act 1966 (“the Bankruptcy Act”), that Mr Hills pay to the first respondent on the motion (“the Trustee”) the sum of $43,500.00 together with $75.00 per week, calculated from 1 February 2003 to the date of payment, within twenty-eight days from 9 December 2003. Mr Hills seeks a declaration for an account under s 86 of the Bankruptcy Act. The Deputy Registrar stayed the order for payment in the event that that an application for review was made, pending the final determination by the Court. At the hearing, the Deputy Registrar filed a submitting appearance.
Section 81(12) of the Bankruptcy Act provides:
‘81(12) Court may order payment of moneys
Where a person admits on examination under this section that he or she is indebted to the relevant person, then, the Court, the Registrar or the magistrate, as the case may be, may, on the application of the trustee or a creditor, order the person to pay to the trustee, at or by such time and in such manner as the Court, the Registrar or the magistrate, as the case may be, thinks fit, the whole or a part of the amount in which the person admits he or she is indebted to the relevant person.’
During the hearing of the evidence of Mr Hills at the Public Examination before the Deputy Registrar, Counsel for the Trustee made an application for an order on the ground that the debt had been admitted by Mr Hills. The Deputy Registrar, after hearing submissions from both Counsel, considered that there was a clear admission and said:
‘THE DEPUTY REGISTRAR: Anything further? No. The examinee this morning, Mr Harvey Hills, when asked questions about a loan to the bankrupts admitted an amount owed to the bankrupts of $43,500 together with an amount of $75 per week was agreed. Mr Johnson sought a direction from me under section 81(12) of the Bankruptcy Act that that sum be paid to Mr Nicholls. Mr Ash on behalf of the examinee raised some points, firstly that the wife should not make the order, the first being the constitutional point. I’m not convinced that I do not have the power to make such an order. If there is a constitutional argument that the examinee can raise that at a later time in a different place.
In relation to the point about the tripartite guarantee negotiations and any remedies that the examinee might have, it is my view that I can make such an order and protect any rights of the examinee by allowing him to bring an application to set my order aside. In relation to the dispute about whether $75 is 9 per cent, I think it is so close to that I don’t think an issue is really there. You do not get any admission in clearer terms in these sorts of examinations than that which the examinee gave this morning, so I will make this order.
Pursuant to section 81(12) of the Bankruptcy Act Harvey Richard Hills pay to A.R. Nicholls in his capacity as trustee of the property of Lancelot Stanley Hills and Vieda Ann Hills, the bankrupts, the amount of $43,500 together with an amount of $75 per week calculated from 1 February 2003 to the date of payment within 28 days of today’s date. If Mr Harvey Richard Hills files an application to review my order within 10 days in either the Federal Court or Federal Magistrates Court, then the order is stayed until finally determined by the Court or pursuant to any other order the Court may determine.’
In the course of argument before me, Counsel for Mr Hills submitted that such orders should not be made “on the run” as a matter of procedural fairness.
NATURE OF REVIEW
Counsel for the Trustee submits that the review application in this instance cannot be brought pursuant to O 35A r 5 of the Federal Court Rules (“the FCR”) because the order to pay money under s 81(12) is a decision of an administrative character and the only relevant review is that provided for in the Administrative Decisions (Judicial Review) Act 1977 (“the ADJR Act”). The significance of this submission is that it provides the basis for the Trustee’s submission that on an administrative review the Court cannot take into account material which was not before the Deputy Registrar.
Counsel for Mr Hills, on the other hand, submits that the review is by way of hearing de novo pursuant to s 35A of the Federal Court of Australia Act 1976 (Cth) (“the Federal Court Act”) which relevantly provides:
‘35A Power of Registrars
(1)Subject to subsection (2), the following powers of the Court may, if the Court or a Judge so directs, be exercised by a Registrar:
…
(h) a power of the Court prescribed by Rules of Court.
…
(5)A party to proceedings in which a Registrar has exercised any of the powers of the Court under subsection (1) may, within the tine prescribed by the Rules of Court, or within any further time allowed in accordance with the Rules of Court, apply to the Court to review that exercise of power.
(6)The Court may, on application under subsection (5) or of its own motion, review an exercise of power by a Registrar pursuant to this section and may make such order or orders as it thinks fit with respect to the matter with respect to which the power was exercised.
(7)Where an application for the exercise of a power referred to in subsection (1) is being heard by a Registrar and:
(a)the Registrar considers that it is not appropriate for the application to be determined by a Registrar acting under this section; or
(b)an application is made to the Registrar to arrange for the first-mentioned application to be determined by the Court;
he or she shall not hear, or continue to hear, the application and shall make appropriate arrangements for the application to be heard by the Court.’
Mr Hills then refers to the FCR, in particular O 77 rr 7, 28 and 29, which relate to bankruptcy proceeding and which provide:
‘7 Exercise of powers by Registrars
For the purposes of paragraph 35A(1)(h) of the [Federal Court] Act , the Court or a Judge may direct a Registrar to exercise a power of the Court under a provision of the Bankruptcy Act specified in column 2 of an item in Schedule 3.
…
28 Application for summons - Form 5 or 154
(1) The application must be in accordance with:
(a)If made to the Court, Form 5; or
(b)If made to a Registrar, Form 154.
(2) The application must be accompanied by an affidavit:
(a)identifying the person to be summoned as a relevant person; and
(b)if the summons is to require the relevant person to produce books at the examination – identifying the books that the person is to produce.
Note: Under subsection 81(1B) of the [Federal Court] Act, a relevant person may be required to produce books at an examination that are in the possession of the person and that relate to the person or to any of the person’s examinable affairs.
29 Requirements of summons – Form 151
(1)If a summons is issued, a Registrar must:
(a)sign and affix stamp of the Court to the summons; and
(b)send it to the applicant for service on the relevant person.
(2)The summons must be in accordance with Form 151.
(3)If the summons requires the relevant person to produce books at the examination, the summons must identify the books that the person is to produce.’
Schedule 3 to the FCR designates examinations conducted under s 81 of the Bankruptcy Act as a power and function of the Court under the Bankruptcy Act which may be exercised by the Registrar, if the Court so directs.
In the present case, I am satisfied from investigations I have made of the Court record that there has been a delegation of this power by the Court to the Deputy Registrar. This delegation was made on 19 June 2003.
I am satisfied that the Deputy Registrar had power in this proceeding to exercise the power of the Court and that such power was exercised. I note that the Deputy Registrar has not made a determination under s 35(A)(7) of the Federal Court Act that it was not appropriate to exercise the power to conduct the s 81 examination. It was not necessary for the Deputy Registrar to specify the particular power he was exercising in making the order for payment. It is sufficient if he had power as delegate of the Court to conduct the examination: see Lockwood v Commonwealth (1954) 90 CLR 177 at 184 per Fullagar J. As a general rule an act purporting to be done under one head of statutory power may be supported under another head of statutory power to perform the same function provided, of course, that the provisions do not prescribe different conditions or terms as to the exercise of the power. Accordingly, since the exercise of power in this case is an exercise of the power of the Court, as provided for in the FCR, review under s 35A(5) of the Federal Court Act is available, so that the hearing is de novo and relevant evidence up to the date of the s 35A(5) hearing by the Court can be taken into account.
Mr Hills sought some further support for his position on the basis that the summons in accordance with Form 151 of the FCR, as issued in the present case, required Mr Hills to appear before the “Court” (as opposed to a requirement to appear before a “Registrar” or “Magistrate”), and the examination was conducted before a Deputy Registrar. I do not consider that this is relevant to the characterisation of the form of review.
For the purpose of determining the question whether the decision made by the Deputy Registrar ordering the payment of money in the present case is a decision of an administrative character, some guidance can be obtained from the decision of the High Court in Harris v Caladine (1991) 172 CLR 84 (“Harris”). That case concerned the constitutional validity of a delegation of power from the Family Court to Registrars. The Court, by majority, concluded that there had been a valid delegation to the Registrar of a power to make a consent order pursuant to O 36A r 2(1) of the Family Court Rules. The Court based this on the ground that the exercise of delegated jurisdiction by the Registrar in that case was subject to review by the Court by way of a hearing de novo: see 95 (per Mason CJ and Deane J); 125 (Dawson J); 151-152 (Gaudron J); and 164 (McHugh J). It is evident from the decisions of their Honours that they considered that the Registrar, exercising delegated power, was making a decision in the exercise of the federal jurisdiction and the judicial power of the Family Court.
At 164 in Harris, speaking of the delegation to the Registrar, McHugh J observed:
‘It follows, in my opinion, that this Court or a federal court created under s. 71 of the Constitution may be authorised to delegate the exercise of its judicial powers to an officer of that court provided that the exercise of the power is subject to review by way of a de novo hearing by a Justice or judge of that court who has been appointed in accordance with s. 72 of the Constitution. It goes without saying that the Parliament cannot require the court to delegate any of its powers. Nor, in my opinion, will anything less than a hearing de novo to review the exercise of the power by the officer be sufficient. That is to say, appellate review is an insufficient condition of the delegation of the exercise of the power; there must be a complete rehearing of the facts and the law as they exist when the Justice or judge reviews the order made by the officer. Otherwise, the officer and not the Justices or the judges of the court would be exercising the original jurisdiction of the Court.’ (Emphasis added)
These observations are apposite to the present case when considering the position of a Deputy Registrar in bankruptcy acting as a delegate of the Court conducting an examination under s 81 of the Bankruptcy Act.
The jurisdiction exercised by the Deputy Registrar in the present case is the exercise of federal jurisdiction by the Court, which retains sufficient supervisory power to warrant the Deputy Registrar’s order being properly characterised an exercise of federal judicial power by the Court. This power is validly delegated to the Registrar because the Court has reserved its power to rehear the matter de novo. It is the subjection of the Registrar’s decision to full review de novo by the Court in the present case, where the Registrar is acting as a delegate, which ensures that the delegation of jurisdiction is lawful. The decision of the Registrar when acting as the Court’s delegate is not, in my view, a decision of an administrative character open to review under the ADJR Act. It is rather an exercise of the Court’s judicial power to determine the matter. By its delegate, the Deputy Registrar, the Court in retaining power to review de novo is exercising a judicial power which can be lawfully exercised by the Deputy Registrar as delegate of the Court. The fact that an application may be made to the Court to enforce the decision of a Registrar under s 30(5) of the Bankruptcy Act does not detract from this conclusion. That section draws a distinction between the Court’s exercise of power and the exercise of power by the Registrar. If no application were made for review of the Deputy Registrar’s decision in this case, then the decision would stand as the decision of the Court, and be enforceable as such.
If, contrary to the view that I have formed, the decision was administrative in character, and review under the ADJR Act was available, I would not, as a matter of discretion, grant ADJR review in any event because the more satisfactory and appropriate remedy is by way of de novo review under s 35A(5) of the Federal Court Act. It is well settled law that the existence of an alternative more suitable remedy can provide a basis for refusal of judicial review: see Reg. v Chief Constable; Ex parte Calveley [1986] 1 QB 424 at 433, 439 and 440. I am persuaded in this case that the hearing de novo is more satisfactory than review under the ADJR Act. For these reasons, I am satisfied that a de novo review is available in the present case, with the consequence that evidence as to what has transpired after the decision of the Registrar on 9 December 2003 can be taken into account.
I note that Finkelstein J concluded that an ADJR review is available in relation to a ruling as to whether a particular question should be permitted to be asked under s 81(10) of the Bankruptcy Act on the ground that the proceeding before him was administrative in character in Clark v Wood (1997) 78 FCR 356 at 359. In that case, his Honour decided that because there was no suggestion that the question under consideration was asked for an improper purpose, or that any harm would be suffered if the question were answered, it was not appropriate to grant any relief. Strictly speaking, therefore, his Honour’s remarks on this aspect were not essential to the outcome in that case.
In his judgment, however, his Honour points out at [359]:
‘In this case the bankrupt only relied on the AD(JR) Act to found jurisdiction. Nothing that I have said should be taken as an indication that I am of the view that the AD(JR) Act is the sole, or even the most appropriate, source of power to control an examination. Quite apart from s 39B of the Judiciary Act 1903 (Cth) pursuant to which an injunction may be sought, the court has an inherent jurisdiction to prevent injustice arising from the use of the Court’s procedures: compare Hamilton v Oades (1989) 166 CLR 486 at 498-499 … in relation to an examination under the former Companies Codes. Jurisdiction may also exist as an incident of the power to order an examination under s 81(1).’
It is not apparent to me from the report of that judgment why his Honour did not advert to the availability of a hearing de novo in that case. Perhaps it was because the Court had not delegated to the Registrar the power of the Court to conduct the s 81 examination under s 35A of the Federal Court Act in that case.
When considering the nature of the power conferred by s 81(12) of the Bankruptcy Act, it is important to note that the power is an exceptional one, and that decisions under it should be exercised with considerable caution and only in clear cases. In some cases it may be appropriate as a matter of caution to grant an adjournment or obtain a confirmation of the admission of the debt in writing. As Jessel MR observed in Ex parte Willey; in re Wright (1883) 23 Ch D 118 at 128, speaking of a power cast in terms which were relevantly similar under s 96 of the Bankruptcy Act 1869 (UK):
‘Now that it is a very grave power to entrust to any Court or any man, viz., power to summon any other man whom you suspect (for mere suspicion will do) to be capable of giving information, and to get information from him, although that information may be extremely hostile to the interests of the man himself. It is a power which, so far as I know, is found nowhere except in bankruptcy and the winding-up of companies (which is a kind of bankruptcy); it is a very extraordinary power indeed, and it ought to be very carefully exercised.’
See also the observations of Luxmoore J in Parren; In re Trustee; Ex parte [1933] B & CR 170 at 171 as to the appropriateness of getting the admission in written form.
This observation is supportive of the submissions made on behalf of Mr Hills as to the need for care in making an order in the course of the examination. However, in the present case, the Deputy Registrar considered the admission to be very clear. He proceeded to make the order only after hearing submissions on this question from both Counsel.
THE PRESENT CASE
In considering the substance of the dispute, the relevant background is as follows. The parents of Mr Hills ran a farm machinery business. Mr Hills worked for his parents. The business failed and the parents were made bankrupt on 31 January 2003, as the result of a Debtors’ Petition of this date. Prior to the bankruptcy, Mr Hills says that there were a number of dealings which gave rise either to obligations by him to pay money to his parents, or obligations by his parents to pay money to him.
At the examination before the Deputy Registrar, Mr Hills was represented by the same Counsel who appeared before me. Counsel for Mr Hills informed me that he did not, at the examination, inform the Deputy Registrar, or make any submission, as to the existence of a set-off. However, he points out that one of the difficulties that he did not raise was that in making orders under s 81(12) a party can be unfairly taken by surprise and not refer to or recall all relevant circumstances. In the present case when the application was made it was submitted for Mr Hills that he ought to have been given a reasonable opportunity to be heard, and it is said that he was not given a proper opportunity. This question of fairness was raised on behalf of Mr Hills before the Deputy Registrar. Counsel submits that the procedure adopted by the Deputy Registrar did not give Mr Hills an opportunity to seek to qualify his admission, or to point out that there may have been a set-off available to him.
The allegation that there has been a lack of procedural fairness is based on two grounds.
The first is that the Deputy Registrar should have had regard to the possibility that there might be matters which in the ordinary course Mr Hills could say in defence or by way of set-off and therefore he should have been allowed a reasonable time within which to consider his position and respond in an informed manner. The difficulty with this ground is that Mr Hills did not raise any suggestion at the hearing through his Counsel of any set-off or claim. This submission, in my view, should not be accepted.
The second ground is that there was an improper exercise of power because no proper consideration was given to Mr Hills’ position as indicated by the absence of any proper reasons by the Deputy Registrar for making the order. Counsel referred to the decision of the High Court in Public Service Board of NSW v Osmond (1986) 159 CLR 656 at 676. In my view, this submission also lacks cogency. There was a clear admission of the debt. The admission is the event which enlivens an exercise of power under s 81(12). The reasoning of the Deputy Registrar is disclosed in par [3] above. Essentially, it is that the admission was made in the clearest terms, and that if there could be shown to be any legitimate challenge the matter could be considered on review by the Federal Court or a Federal Magistrate’s Court and that the position of Mr Hills would be protected until the final determination by the Federal Court in the event of an application for review. In my view, these reasons read in context constitute sufficient reasons.
Counsel for Mr Hills concedes that Mr Hills admitted the debt of $43,500, but says there is evidence which establishes a set-off. In particular, it is said on behalf of Mr Hills that there are claims in respect of a Kenworth truck, and in respect of employment entitlements. It is said that the Trustee brought evidence in the course of the examination which indicated that payments had been made by Mr Hills on the Kenworth truck. Reliance is placed on the submission that the Trustee, in a letter of 30 January 2004, accepted on “specialist legal advice” that a proof of debt may be lodged in relation to Mr Hills’ employment entitlements. It is said that this possibility ought to have been investigated by the Deputy Registrar at the time of the examination on 9 December 2003, since an investigation would have disclosed that Mr Hills may be entitled to prove in the estate for this amount, and that the Deputy Registrar should have appreciated that any set-off should be taken into account before making the order requiring payment. It is said that the interest component of the order dating from the date of bankruptcy cannot be an obligation that Mr Hills ought to bear in its entirety. Mr Hills has made it clear that no bad faith on behalf of the Deputy Registrar or of anyone else is asserted in this case, but says that there was an unintentional misuse of the Court’s power and a failure to provide procedural fairness.
I do not consider that there has been any failure to provide procedural fairness caused by the Deputy Registrar not making further inquiries or failing to give reasons in this case as submitted by Counsel for Mr Hill. The fact is that no reference was made in the course of the hearing before the Deputy Registrar to any claim for a set-off as now asserted. The subsequent correspondence in January, invitation to lodge a Proof of Debt and lodgement of a Proof of Debt do not warrant an order that the decision of the Deputy Registrar should be set aside. The letter of 30 January 2004, relied on, was written more than six weeks after the hearing. It is inconclusive in terms, and the fact that there was an invitation to lodge a Proof of Debt does not establish that the position as at the hearing before the Deputy Registrar was such that if further inquiries had been made they would have established that there was a set-off, or that the order should not have been made. The letter and subsequent correspondence do not establish any procedural unfairness. The Trustee should, however, be given an opportunity to consider the merits of such claims.
A letter of 24 March 2003, relied on by Mr Hills in relation to the Kenworth truck, was written by the Trustee approximately eight months before the hearing by the Deputy Registrar. It refers to a claim in respect of payments on the truck, and indicates that the amount necessary to pay out the Trustee’s interest in the truck was estimated to cost in the order of $44,440.00, which, it is stated, may “possibly be” offset to a degree by proving as an unsecured creditor in the bankrupt estate. The Trustee pointed out that the Trustee could approach Ford Credits on Mr Hill’s behalf, should Mr Hills wish to proceed with the claim, and said that the Trustee awaited further advice. There is no evidence that Mr Hills undertook any further communication with the Trustee in pursuance of this invitation.
I am not satisfied that the correspondence and documents relied on by Mr Hills to warrant the setting aside of the Deputy Registrar’s decision. However, in view of the fact that the Trustee stated in January 2004 that he had received “specialist legal advice” that the entitlement of Mr Hills for annual leave should be paid by the bankrupt estate and that there was attached a Proof of Debt in the sum of $10,254.98, I have concluded that the order made by the Deputy Registrar should continue to be stayed until the resolution of any claims by Mr Hills have been duly determined by the Trustee in the course of administration.
Having regard to the evidence presently before me, I am not persuaded that the decision of the Deputy Registrar ordering the payment of $43,500.00 together with interest, should be set aside at this point. However, in view of the correspondence and as suggested by the Trustee, I consider that the stay granted by the Deputy Registrar should continue, pending the determination by the Trustee of the claims asserted by the applicant.
The only order I make at this point is that the application is stood over for further directions on 24 June 2004 at 9.30 am, by which time I anticipate that the Trustee will have had an opportunity to consider and determine Mr Hills’ claims. The stay granted by the Deputy Registrar will continue until further order. I reserve the question of costs. I reserve liberty to apply to all parties on two days’ notice.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin. Associate:
Dated: 26 March 2004
Counsel for the Applicant: J T Johnson Solicitor for the Applicant: Sally Nash & Co Counsel for the First Respondent: D Ash Solicitor for the First Respondent: A R Walmsley & Co Solicitor for the Second Respondent: Australian Government Solicitor Date of Hearing: 10 March 2004 Date of Judgment: 26 March 2004
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