Skipworth v State of Western Australia & Ors (No. 2)
[2008] FMCA 544
•9 May 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SKIPWORTH v STATE OF WESTERN AUSTRALIA & ORS (No.2) | [2008] FMCA 544 |
| COSTS – BANKRUPTCY – Alleged denial of procedural fairness on costs order – whether inherent jurisdiction in the Court – vesting order – whether statutory grounds for review – whether Court able to re-open final order – whether denial of procedural fairness – reconsideration of costs order – costs order not varied. |
| Bankruptcy Act, 1966 (Cth), ss.32, 133(1) & (9) Federal Magistrates Court (Bankruptcy) Rules, 2006 (Cth) r.13.01 |
| Bailey v Marinoff (1971) 125 CLR 529 Bunnag v Minister for Immigration and Anor [2008] FMCA 430 Goldsmith v Minister for Immigration and Multicultural Affairs [2006] FCAFC 130 Ridge v Baldwin [1964] AC 40 Sparks v Bellotti [1981] WAR 65 State Rail Authority of New South Wales v Codelfa Construction Pty Ltd (1982) 150 CLR 29 |
| Applicant | JANET-JANE SKIPWORTH |
| First Respondent: | STATE OF WESTERN AUSTRALIA |
| Second Respondent: | RAMS MORTGAGE CORPORATION LIMITED |
| Third Respondent: | CITI NOMINEES LTD |
| Fourth Respondent: | PMB PLASTERBOARD PTY LTD |
| Fifth Respondent: | HUBERT HORACE DUFALL |
| Sixth Respondent: | HARRY ROBINSON |
| Seventh Respondent: | CHEQUECASH PTY LTD |
| Eighth Respondent: | KIM DAVID HOLBROOK |
| File Number: | PEG 47 of 2007 |
| Judgment of: | Lucev FM |
| Date of Last Submission: | 30 November 2007 |
| Delivered at: | Perth |
| Delivered on: | 9 May 2008 |
REPRESENTATION
| Applicant: | No written submissions |
| Solicitors for the First Respondent: | State Solicitor for Western Australia by written submissions |
| Solicitors for the Second Respondent: | Solomon Brothers by written submissions |
| Solicitors for the Third, Fourth, Sixth and Seventh Respondents: | Julienne Penny & Associates by written submissions |
| Fifth Respondent: | No written submissions |
| Eighth Respondent: | No written submissions |
ORDERS
(1)The application by the First Respondent with respect to the Applicant’s costs be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 47 of 2007
| JANET-JANE SKIPWORTH |
Applicant
And
| STATE OF WESTERN AUSTRALIA & ORS |
Respondents
REASONS FOR JUDGMENT
Application
This is an unusual application concerning the costs of proceedings before this Court arising from a hearing on 11 October 2007 and judgment and orders on 18 October 2007.[1]
[1] Skipworth v State of Western Australia & Ors [2007] FMCA 1730 (“Skipworth (No 1)”).
The orders of 18 October 2007 included an order for costs[2] against the Applicant, Mrs Skipworth.[3] The Costs Order was for the Applicant to pay the costs of each of the respondents, which, if not agreed, were to be taxed under O.62 of the Federal Court Rules by a Registrar of this Court. The Costs Order is now sought to be set aside or varied by the First Respondent.[4]
[2] “Costs Order”.
[3] “Applicant”.
[4] “Further Application”.
Short Background
The Applicant and Mr Skipworth were the joint registered proprietors of land at 15 Park Lane, Kardinya.[5]
[5] “Kardinya Property”.
The Kardinya Property was subject to a mortgage, and the Applicant and Mr Skipworth fell behind in their payments under a loan agreement and credit facility with the mortgagee, RAMS.[6] RAMS issued default notices under the mortgage. Mr Skipworth[7] was declared bankrupt shortly thereafter. RAMS commenced and obtained judgment for possession of the Kardinya Property. The Bankrupt’s trustee in bankruptcy[8] disclaimed the Kardinya Property. RAMS obtained a Property (Seizure and Delivery) Order, but execution of the judgment for possession and the Property (Seizure and Delivery) Order was stayed because no vesting order under s.133(9) of the Bankruptcy Act 1966 (Cth)[9] had been obtained in relation to the interest in the Kardinya Property disclaimed by the trustee in bankruptcy.[10]
[6] Rams Mortgage Corporation Limited, the Second Respondent.
[7] “Bankrupt”.
[8] Kim David Holbrook, the Eighth Respondent.
[9] “Bankruptcy Act”.
[10] RAMS Mortgage Corporation Ltd v Skipworth & Anor (No. 2) [2007] WASC 75 at para. 30 per EM Heenan J.
The Applicant applied to the Court for a vesting order to vest the Kardinya Property in her. That application was opposed by RAMS, and also by Citi Nominees and PMB Plasterboard.[11] The Third and Fourth Respondents have, or had, the benefit of several caveats over the Kardinya Property.
[11] The “Third Respondent” and “Fourth Respondent” respectively.
The Applicant’s application was unsuccessful, and on 18 October 2007 the Court made orders vesting the property in the Second Respondent as well as the Costs Order.
Orders made on 18 October 2007
The orders made by the Court on 18 October 2007 were as follows:
(1)The interest held by the State of Western Australia, formerly held by Mr Jeffrey Donald Skipworth, in the property situated at 15 Park Lane, Kardinya, Western Australia (“Property”), be vested in the second named respondent, RAMS Mortgage Corporation Limited, under s.133(9) of the Bankruptcy Act 1966 (Cth), subject to the following conditions:
(a)That RAMS Mortgage Corporation Limited sell the Property under its powers as registered mortgagee under Mortgage H989743 and s.108 of the Transfer of Land Act 1892 (WA) (“Mortgage”) by no later than 9.00am on 18 October 2008;
(b)After payment of the expenses of and incidental to and consequent on that sale and the monies due or owing under the Mortgage, RAMS Mortgage Corporation Limited commence interpleader proceedings in the Supreme Court of Western Australia to determine the person entitled to distribution of any surplus under s.109 of the Transfer of Land Act 1892 (WA) and condition (iii) below; and
(c)Any portion of any such surplus which, but for the disclaimer by the trustee of the bankrupt estate of Jeffrey Donald Skipworth (“Trustee”) of any interest in the Property, would have been payable to the Trustee be paid from such surplus to the Trustee for the benefit of the creditors of that bankrupt estate.
(2)All other extant applications be dismissed.
(3)The applicant pay the costs of each of the respondents which, if not agreed, are to be taxed under Order 62 of the Federal Court Rules by a Registrar of this Court.
Application re Costs Order
On 18 October 2007 following entry of the orders as set out above, the First Respondent, the State of Western Australia, wrote to the Court and sought leave to make submissions in relation to the Costs Order, to the effect that a limited or no costs order ought to have been made against the Applicant.[12] Effectively, the First Respondent sought to vary or set aside the Costs Order.
[12] “Further Application”.
On 25 October 2007 the Second Respondent wrote to the Court opposing any setting aside or variation of the Costs Order.
Further orders – 6 November 2007
On 6 November 2007 the Court made further orders in the following terms:
1.The letter from the State Solicitor’s Office dated 18 October 2007 (“First Respondent’s Letter”), sent to the Court and each of the other parties, be treated as an application for the purpose of rules 4.01 and 4.02 of the FMC Rules (“First Respondent’s Application), and the requirement under rule 4.05 of the FMC Rules to file an affidavit in support of the First Respondent’s Application be dispensed with.
2.The First Respondent’s Application be considered to be an application to vary Order 3 of the Orders (“the Orders’) made by this Court on 18 October 2007.
3.The First Respondent’s Application be dealt with by way of written submissions, without the need for further hearing or evidence.
4.The First Respondent’s Letter will be taken to be the written submissions of the First Respondent, provided that the First Respondent may file and serve a supplementary written submission by 4.00pm on 16 November 2007.
5.The Second Respondent’s Letter dated 25 October 2007 (“Second Respondent’s Letter), sent to the Court and each of the other parties, will be taken to be the written submissions of the Second Respondent, provided that the Second Respondent may file and serve a supplementary written submission by 4.00pm on 23 November 2007.
6.The Applicant and the Third, Fourth, Fifth, Sixth, Seventh and Eighth Respondents file and serve any written submission by 4.00pm on 30 November 2007.
7.Any written submissions or supplementary written submissions are to address only the following issues:
(a)the Orders having been extracted, can the Court reconsider the issue of costs;
(b)if the Court can reconsider the issue of costs, the merits of the First Respondent’s Application; and
(c)the costs of the First Respondent’s Application.
8.Compliance with Order 3 of the Orders made by this Court on 18 October 2007 be suspended until further order.
9.The matter otherwise be adjourned to a date to be fixed for judgment on the First Respondent’s Application.
Factual background
In order to understand the submissions made by the First Respondent in relation to costs it is necessary to set out the factual background in greater detail.
That background is as follows:
a)the Applicant was the joint tenant of the Kardinya Property (being the whole of the land contained in the Certificate of Title Volume 1774, Folio 420) with the Bankrupt;
b)the trustee of the estate of the Bankrupt disclaimed the Bankrupt’s interest in the Kardinya Property, under section 133(1) of the Bankruptcy Act by notice dated 11 October 2006;[13]
[13] “Disclaimer”.
c)upon the Disclaimer of the Bankrupt’s interest in the Kardinya Property taking effect, the Bankrupt’s interests in the Kardinya Property vested in the First Respondent;
d)on 21 March 2007 the Applicant filed a notice seeking an order that the former interest of the Bankrupt in the Kardinya Property vest in the Applicant, under section 133(9) of the Bankruptcy Act;[14]
e)on 16 May 2007, the Third and Fourth Respondents filed a Response seeking final orders that the former interest of the Bankrupt be vested in the Third Respondent;
f)on 31 May 2007, the Second Respondent filed a Notice Stating Grounds of Opposition to the Original Application;
g)on 11 June 2007, the Court ordered that the Third and Fourth Respondents’ Response be taken to be in the correct form and be taken to be an Interim Application for the orders set out therein;
h)on 12 June 2007, the Second Respondent filed a Notice Stating Grounds of Opposition in relation to the Interim Application of the Third and Fourth Respondents;
i)on 22 June 2007, the Second Respondent filed an Interim Application seeking that the interest held by the First Respondent be vested in the Second Respondent;
j)during the life of the proceedings, the First Respondent did not oppose the Original Application to vest the Kardinya Property in the Applicant, or any other vesting applications brought under to s.133(9) of the Bankruptcy Act;
k)on 11 October 2007, the Original Application and Interim Applications were heard by the Court, and the matter was adjourned to 18 October 2007 for delivery of judgment;
l)at the time of delivering judgment the Applicant was unrepresented and the parties were not expressly availed of the opportunity to make submissions on costs but there was no indication that they wished to be heard as to costs; and
m)on 18 October 2007, the Court made the orders, including the Costs Order, set out above.
[14] “Original Application”.
First Respondent’s submissions
The First Respondent argues that:
a)the Court has inherent jurisdiction to vary orders, particularly where there is a matter calling for review, or where the interests of justice so require;[15]
b)whilst it is more difficult to vary orders already entered,[16] in the circumstances of this case there is inherent jurisdiction to vary orders:
i)to ensure that the Court’s orders do not effect injustice; and
ii)because variation is permitted by statute;[17]
c)the Court may amend an order (or part of a judgment) which is not the operative and substantial part,[18] and in this case the Costs Order is not the operative and substantial part of the orders;
d)because the Applicant was not given the opportunity to understand and be heard on costs, the Court has inherent jurisdiction to rectify injustice in relation to its own procedures, [19] notwithstanding that it is not a court of inherent jurisdiction.
[15] De L v Director-General, NSW Department of Community Services (No 2) (1997) 190 CLR 207 at 215 per Brennan CJ and Dawson J (“De L (No 2)”).
[16] State Rail Authority of New South Wales v Codelfa Construction Pty Ltd (1982) 150 CLR 29 at 38 per Mason and Wilson JJ (“Codelfa Construction”).
[17] Permanent Trustee Co (Canberra) Ltd (Executor estate of Andrews) v Stocks & Holdings (Canberra) Pty Ltd (1976) 15 ACTR 45 at 48 per Brennan J.
[18] Bailey v Marinoff (1971) 125 CLR 529 at 539-545 per Gibbs J.
[19] Monaco v Arnedo Pty Ltd (1994) 13 WAR 522 at 524 per Malcolm CJ.
The First Respondent also suggests that the Court has statutory jurisdiction to vary the Costs Order under r.16.05(2) of the FMC Rules[20] because:
a)the Applicant was not given the opportunity to address the Costs Order, or asked if she understood the effect of the Costs Order, therefore the First Respondent says that the Costs Order was effectively made in the absence of the Applicant for the purposes of r.16.05(2)(a) of the FMC Rules; and
b)there is no evidence to suggest that the Costs Order reflects the intention of the Court, and it can therefore be set aside under r.16.05(2)(e) of the FMC Rules.[21]
[20] Federal Magistrates Court Rules, 2001 (Cth) (“FMC Rules”).
[21] Hurstville City Council v Jacobs [2007] NSWLEC 630 at para. 33 per Jagot J (“Hurstville City Council”).
In relation to the merits of the Further Application the First Respondent says as follows:
a)the Applicant was denied procedural fairness through a lack of opportunity to be heard in relation to the Costs Order;
b)the Costs Order does not adequately reflect the fact that one party would have had to have maintained an application, and that one party bearing substantial costs for up to eight respondents, including the cost of an abandoned interim application by the Third and Fourth Respondents seeking that the disclaimed property be vested in them (that application being abandoned at hearing) where all parties benefited from vesting of the Kardinya Property being finally determined, is manifestly inequitable;
c)the Court has a wide discretion to make any costs orders that it thinks fit;
d)that costs associated with the vesting of disclaimed property are analogous to the costs associated with a sequestration petition, where the petitioner is not entitled as of right to the costs of the petition, and where the proceedings are for the benefit of all creditors, the petitioning creditors’ costs are taxed and paid out of the estate;[22]
e)it was necessary for one party to bring an application for vesting of the Bankrupt’s former interest in the Kardinya Property and the Applicant had reasonable prospects of success in making the Original Application, given the broad discretion of the Court to vest the property in whosoever it considered it was just and equitable to do so;[23]
f)if the Applicant had responded to, rather than initiated, the proceedings she would have been one of a number of Respondents, and in those circumstances, the First Respondent says that costs could have been shared between opposing respondents, or more appropriately borne by each party;
g)that the extended default of the Applicant on her mortgage is not a basis for, or necessarily relevant to the merits of, the determination of the costs of the proceedings, at least without that issue being ventilated before the Court; and
h)there is no dispute that the Second Respondent’s action in seeking vesting of the Bankrupt’s former interest in the Kardinya Property was reasonable, but the First Respondent argues that the Applicant’s actions were within the statutory ambit of the Bankruptcy Act, and were also reasonable.
[22] Re Hardwick[1976] Qd R 264 at 266-267 per Dunn J; (1976) 13 ALR 641 at 643-644 per Dunn J (“Hardwick”).
[23] Bankruptcy Act, s133(1).
By reason of the above matters the First Respondent says that appropriate orders would have been that each respondent bear their own costs, or alternatively that the costs of each of the respondents be paid out of any surplus of the sale of the property.
Applicant’s submissions
The Applicant, afforded the opportunity to make submissions concerning the Costs Order, made none.
Second Respondent’s submissions
The Second Respondent opposes the Costs Order being varied as proposed by the First Respondent.
The Second Respondent says that there is no jurisdiction to vary the Costs Order as it has been extracted, and in those circumstances cannot generally be revisited. It says that for the Costs Order to be revisited requires the demonstration of error, and the Second Respondent says that there is no relevant error suggested.[24]
[24] De L (No 2) at 215 per Toohey, Gaudron, McHugh, Gummow and Kirby JJ.
The Second Respondent also says that it has not been demonstrated that there is irremediable injustice against the public interest in maintaining the finality of this litigation.[25]
[25] Codelfa Construction at 38 per Mason and Wilson JJ.
Having regard to the foregoing grounds, and in circumstances where the Costs Order has been entered, the Second Respondent says that the First Respondent ought not be allowed to change its position to support the Applicant with respect to costs, the First Respondent having neither consented to nor opposed any of the vesting applications that were before the Court.
The Second Respondent also says that no grounds for statutory review under r.16.05(2) of the FMC Rules have been made out.
The Second Respondent also says that it is insufficient for a bald assertion to be made by the First Respondent that there is no evidence that the Costs Order reflects the intention of the Court. The Second Respondent says that the First Respondent must establish that the Costs Order does not reflect the intention of the Court, and that there is no evidence to establish that, particularly having regard to the Reasons for Judgment in Skipworth (No. 1).
Third, Fourth, Sixth and Seventh Respondents’ Submissions
The Third, Fourth, Sixth and Seventh Respondents submitted that the Costs Order ought not to be revisited. They adopted the Second Respondent’s submissions in that regard.
The Third, Fourth, Sixth and Seventh Respondents also submitted as follows:
a)if the Third and Fourth Respondents’ applications for vesting had not been brought there was some prospect that the Applicant may have had the balance of the proceeds of sale following the Second Respondents vesting order being received by the Applicant;
b)it was necessary that the Third and Fourth Respondents’ applications be determined in priority to the Original Application so as to highlight to the Court the potential injustice that may be caused to the Third, Fourth, Sixth and Seventh Respondents should the Original Application be successful;
c)the Third and Fourth Respondents’ Interim Application was not pursued at hearing but they still required representation to ensure that their interests were protected in relation to the balance of the net proceeds of sale as between the Applicant and the Third, Fourth, Sixth and Seventh Respondents;
d)all of the costs incurred by the Third, Fourth, Sixth and Seventh Respondents were as a direct result of the unsuccessful Original Application; and
e)costs should follow the event and the Costs Order should be confirmed.
Consideration of issues
The issues in this case are as follows:
a)whether this Court is a court of inherent jurisdiction and the effect of that in relation to these proceedings;
b)whether the Costs Order was made in the absence of the parties, and in particular the Applicant;
c)whether the Costs Order reflected the intention of the Court;
d)whether the Applicant was denied procedural fairness in relation to the Costs Order;
e)whether the Costs Order ought be reconsidered so that:
i)there be a variation of the Costs order;
ii)parties other than the Applicant bear some of the costs;
iii)the costs be paid out of any surplus proceeds of the sale of the Kardinya Property; and
f)who ought to pay the costs of the Further Application.
Inherent jurisdiction
The First Respondent’s submission in relation to this Court exercising purported inherent jurisdiction is somewhat confusing. The First Respondent first asserts that the Court has inherent jurisdiction to vary or set aside the Costs Order. Then, there is a submission that the Court has no inherent jurisdiction, but that notwithstanding that where the Applicant was not given the opportunity to understand and be heard on costs the Court has an inherent jurisdiction to rectify such injustice.[26] Further, the First Respondent says that there are statutory powers of review and seeks that the Court exercise statutory powers of review (as contained in the FMC Rules), on the basis that the Costs Order has been made in the absence of a party or that it does not reflect the intention of the Court. This is put as an additional consideration to the inherent jurisdiction that the First Respondent says that the Court can exercise.
[26] First Respondent’s Supplementary Submissions in Relation to Costs at para. 26.
The issue of inherent jurisdiction of federal courts in Australia has been the subject of consideration by the Federal Court and the High Court.
In DJL v The Central Authority[27] the High Court was dealing with the power of the Family Court of Australia to re-open or set aside an order after entry. The High Court said this:
“Section 21(1) of the Family Law Act provides that a court “to be know as the [Family Court] is created” by that statute. Original jurisdiction is conferred on the Family Court by s.31 and appellate jurisdiction by s.93A(1). Jurisdiction is also conferred by other statutes…
The Family Court is thus not a common law court as were the three common law courts at Westminster. Accordingly, it is “unable to draw upon the well of undefined powers” which were available to those courts as part of their “inherent jurisdiction”. The Family Court is a statutory court, being a federal court created by the Parliament within the meaning of s.71 of the Constitution. A court exercising jurisdictional powers conferred by statute “has powers expressly or by implication conferred by the legislation which governs it” and “[this] is a matter of statutory construction”; it also has “in addition such powers as are incidental and necessary to the exercise of the jurisdiction or the power so conferred”. It would be inaccurate to use the term “inherent jurisdiction” here and the term should be avoided as an identification of the incidental and necessary power of a statutory court.”[28]
[27] (2000) 201 CLR 226; [2000] HCA 17 (“DJL”).
[28] DJL CLR at 240-241 per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ; HCA at paras. 24-25 per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ.
In DJL the majority of the High Court went on to express the view that the distinction between inherent jurisdiction or inherent power and jurisdictional power derived by implication from statutory provisions conferring a particular jurisdiction “is not always made explicit but is fundamental”.[29]
[29] DJL CLR at 241 per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ; HCA a para. 26 per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ.
In DJL the High Court quoted from the decision of the Full Court of the Federal Court in Parsons & Ors v Martin & Ors.[30] In Parsons the Full Court of the Federal Court was considering whether a Court of Petty Sessions in Western Australia was a court of inherent jurisdiction. Relevantly, the Full Court of the Federal Court said as follows:
[30] (1984) 5 FCR 235 (“Parsons”).
The Court of Petty Sessions is of course a creature of statute. So too is the Supreme Court of Western Australia though its jurisdiction, as spelled out in Pt III of the Supreme Court Act 1935 (WA), is largely tied to the jurisdiction of the superior courts in England as at 1861.
In its strict sense the term “jurisdiction” means:
“…the authority which a court has to decide matters that are litigated before it or to take cognisance of matters presented in a formal way for its decision.” (Halsbury’s Laws of England (4th ed, 1975), vol 10, par 715.)
The expression “inherent jurisdiction” has come to be used, not so much to refer to the authority of the court to decide matters before it but rather to describe the power which a court may have, independent of statutory authority, express or implied.
In Australia, with its federal system, there is in truth no court of unlimited jurisdiction though the term continues to be used. Thus in Walsh v Giumelli [1975] WAR 114 at 116 the Full Court referred to the jurisdiction, powers and authority of magistrates sitting in Petty Sessions and said:
“But their jurisdiction is statutory, and they have no inherent jurisdiction such as is possessed by superior courts of unlimited jurisdiction.”
In Smith v Brown [1978] WAR 157 at 159, Burt CJ reiterated:
“The jurisdiction of courts of petty session is entirely statutory. They have no inherent jurisdiction.”
In R v Forbes; Ex parte Bevan (1972) 127 CLR 1 at 7 Menzies J spoke of inherent jurisdiction as “the power which a court has simply because it is a court of a particular description”. He added:
“Inherent jurisdiction is not something derived by implication from statutory provisions conferring particular jurisdiction; if such a provision is to be considered as conferring more than is actually expressed that further jurisdiction is conferred by implication according to accepted standards of statutory construction and it would be inaccurate to describe it as ‘inherent jurisdiction’, which, as the name indicates, requires no authorising provision. Courts of unlimited jurisdiction have ‘inherent jurisdiction’.”
In our opinion a court exercising jurisdiction conferred by statute has powers expressly or by implication conferred by the legislation which governs it. This is a matter of statutory construction. We are of opinion also that it has in addition such powers as are incidental and necessary to the exercise of the jurisdiction or the powers so conferred.
In view of the way in which the phrase “inherent jurisdiction” is used in many of the cases, it seems advisable generally to avoid the use of it to refer to this incidental and necessary power of a statutory court.
It would not be right to say that, because it is a court of limited jurisdiction, a Court of Petty Sessions has no power to regulate its own procedures. But the submission of the appellants that if a matter is not truly one of jurisdiction it must be one of procedure and within the competence of the court to regulate goes too far. The relevant distinction for present purposes is not between jurisdiction on the one hand and procedure on the other but rather between matters of substantive law and adjectival law, a distinction adverted to by Wickham J in Sparks v Bellotti [1981] WAR 65. His Honour said (at 68-69):
“The jurisdiction of a court to hear and determine in respect to subject matter, parties and territorial limits, and in respect to the substantive law to be applied, is to be distinguished from the manner in which that jurisdiction may be exercised. …Where, however, the enabling statute, or rules or regulations lawfully made thereunder, is silent as to adjectival or procedural matters – that is the manner of the exercise by the court of its duties and powers – then the court has an unexpressed power to control its procedures.”
Whether a matter is truly adjectival may not always be capable of ready determination.[31]
[31] Parsons at 240-241 per Bowen CJ, Northrop and Toohey JJ.
In VTAG v Minister for Immigration and Multicultural and Indigenous Affairs[32] the Full Court of the Federal Court said as follows:
The Federal Court, as a statutory court, does not have any inherent jurisdiction: DJL at [25]. (Although all Australian courts are statutory, in the sense that they have been constituted by legislation, whether Imperial, Colonial, Commonwealth, State or Territory.) On the other hand, the Court has all the “powers expressly or by implication conferred by the legislation which govern[s] it” and has “in addition such powers as are incidental and necessary to the exercise of the jurisdiction of the powers so conferred”: DJL at [25]. The extent of the Court’s “incidental and necessary” powers are shaped by s 5(2) of the Federal Court Act. Section 5(2) provides that the Federal Court is “a superior court of record and is a court of law and equity”. In consequence, the Court’s “incidental and necessary powers” are “no less in relation to the jurisdiction vested in it than the inherent power of a court of unlimited, or general, jurisdiction”: Jackson v Sterling Industries Ltd (1987) 162 CLR 612 at 619 per Wilson and Dawson JJ. It follows that the Federal Court can by consent set aside final orders which have been made by consent. In very limited circumstances, the Court can also set aside final orders made otherwise than by consent.[33]
[32] (2005) 141 FCR 291; [2005] FCAFC 91.
[33] VTAG FCR at 296 per Heerey, Finkelstein and Lander JJ; FCAFC at para. 30 per Heerey, Finkelstein and Lander JJ.
More recently, in Re Read & Another[34] the Federal Court said as follows:
Further, and equivalent to the inherent jurisdiction of the State Supreme Courts…is the implied incidental power of this Court to make orders which are necessarily incidental to its express powers. In Jackson v Sterling Industries Ltd (1987) 162 CLR 612, Deane J (Mason CJ, agreeing) quoted with approval the statement by Bowen CJ in the Full Court of the Federal Court, under appeal (at 623-624):
In relation to a statutory court such as the Federal Court it is wise to avoid the use of the words “inherent jurisdiction”. Nevertheless, a statutory court which is expressly given certain jurisdiction and powers must exercise that jurisdiction and those powers. In doing so it must be taken to be given by implication whatever jurisdiction or powers may be necessary for the exercise of those expressly conferred.[35]
[34] (2007) 164 FCR 237; [2007] FCA 1985 (“Read”).
[35] Read FCR at 247 per French J; FCA at para. 40 per French J.
The true position is therefore that this Court, like the Federal Court and the Family Court, has no inherent jurisdiction. There is an implied incidental power to make orders necessarily incidental to express powers. As with the Federal Court and the Family Court, this Court has implied incidental powers shaped by the relevant statutory provisions.
Like the Federal Court and Family Court, this Court is:
a)a court of record;[36]
b)a court with such original jurisdiction as is vested in it by laws made by the Federal Parliament,[37]
and this Court like the Federal Court is a court of law and equity.[38]
[36] Federal Magistrates Act, 1999, s.8(3) (“FM Act”); Federal Court of Australia Act, 1976 (Cth), s.5(2) (“FC Act”); Family Law Act, 1975 (Cth) s.21(2) (“FL Act”).
[37] Federal Magistrates Act, 1999, s.10(1) & (2); Federal Court of Australia Act, 1976 (Cth), s.19; Family Law Act, 1975 (Cth) s.31.
[38] Federal Magistrates Act, 1999, s.8(3); Federal Court of Australia Act, 1976 (Cth), s.5(2).
Unlike the Federal Court and the Family Court this Court is not expressly said to be a “superior” court of record. Nor, however, is it said expressly to be an inferior court of record.
It may therefore be arguable that this Court’s implied incidental powers are less than those of the Federal Court and Family Court, and, by analogy, less than the inherent jurisdiction of the courts of common law of unlimited jurisdiction. At the very least, the failure to create this Court as a “superior” court of record under the FM Act may be taken as an indication that the Federal Parliament did not intend to create this Court as a superior court of record. Put another way it is arguable that this Court’s implied incidental power to make orders necessarily incidental to its express powers is not as broad as that of the Federal Court because the Federal Court is expressed by statute to be a superior court of record. If that argument is correct it may seem anomalous to some given that this Court and the Federal Court, and this Court and the Family Court, have concurrent jurisdiction in many areas, and concurrent, but sometimes limited, jurisdiction in other areas.[39] For similar reasons it may also seem anomalous given that this Court, like the Federal Court and the Family Court, has associated jurisdiction to deal with common law claims which, were it not for the primary federal matter, would, in many cases, be within the jurisdiction (including any inherent jurisdiction) of the state common law superior courts of record.[40]
[39] Those areas of concurrent (including concurrent but limited) jurisdiction include various aspects of: (a) administrative law, admiralty, bankruptcy, consumer protection (trade practices), copyright, human rights and equal opportunity, migration, privacy and workplace relations (with the Federal Court); and (b) family law and child support (with the Family Court).
[40] FM Act, s.18; FC Act, s.32; FL Act, s.33.
Ultimately, the superior – inferior distinction may matter little at a federal level. First, the declaration of a court as a “superior” court of record may not be intended to confer jurisdiction, but be merely titular.[41] Second, there may be a distinction between an “inferior” court at common law, and an “inferior” court in the Australian federal system, with the Federal Court and Family Court being inferior to the High Court, and this Court being inferior to each of those courts.[42] Ultimately however the exercise of the implied incidental power of a federal statutory court is always subject to relevant statutory provisions.[43] The High Court expressed it this way in DJL:
“In the case of each such court, State or federal, attention must be given to the text of the governing statutes and any express or implied powers to be seen therein.”[44]
[41] J. Quick and L.Groom, The Judicial Power of the Commonwealth (1904) p.76; discussing “superior court of record” in s.4 of the Judiciary Act, 1903 (Cth).
[42] Quick and Garran, Annotated Constitution of the Australian Commonwealth (1901), p. 726; Constitution, s.71. See also the discussion in L. Zines, Federal Jurisdiction in Australia (3rd Ed), (Sydney: Federation Press, 2002) pp 106-115. In R v Commonwealth Court of Conciliation and Arbitration; Ex parte Whybrow & Co (1910) 11 CLR 1 at 41 O’Connor J. spoke of the High Court being vested by s.71 of the Constitution with the “supreme judicial power of the Commonwealth, and it must necessarily include the power to keep inferior Courts of the federal judicial system from exceeding their jurisdiction.”.
[43] VTAG FCR at 294 per Heerey, Finkelstein and Lander JJ; FCA at paras. 19-20 per Heerey, Finkelstein and Lander JJ.
[44] DJL CLR at 247 per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ; HCA at para. 43 per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ.
Section 43(1) of the FM Act expressly provides that the practice and procedure of this Court “is to be in accordance with [the FMC Rules] made under [the FM] Act…subject to any provision made by or under [the FM Act] or any other Act with respect to practice and procedure.” Insofar as the FMC Rules made under s.43(1) of the FM Act are insufficient, s.43(2) of the FM Act provides for the Rules of Court made under the FL Act or FC Act (as appropriate) to apply with necessary modifications so far as they are capable of application and subject to any direction of this Court.
This Court’s practice and procedure “includes all matters in relation to which Rules of Court may be made under” the FM Act.[45]
[45] FM Act, s.43(3).
Section 81 of the FM Act provides that the Federal Magistrates, or a majority of them, may make Rules of Court for or in relation to the practice and procedure to be followed in the Court, and all matters and things incidental to any such practice and procedure or necessary or convenient to be prescribed for the conduct of any business of the Court.[46]
[46] FM Act, s.81(1)(a) and (b).
The FMC Rules may also prescribe matters required or permitted by another provision of the FM Act, or any other law of the Commonwealth, to be prescribed by the Rules of Court.[47]
[47] FM Act, s.81(1)(c).
The FMC Rules have effect “subject to any provision made by another Act, or by rules or regulations under another Act, with respect to the practice and procedure in particular matters.”[48]
[48] FM Act, s.81(2).
Section 86 of the FM Act provides that the FMC Rules may make provision for or in relation to the cost of proceedings in the Court.[49]
[49] FM Act, s.86(b).
The FMC Rules may also prescribe matters “incidental” to matters required or permitted to be prescribed by the FMC Rules under any other provision of the FM Act or any other law of the Commonwealth.[50]
[50] FM Act, s.88.
The FM Act also provides that in general federal law proceedings the Court “has jurisdiction to award costs in all proceedings…other than proceedings in respect of which any other Act provides that costs must not be awarded.”[51] Those costs are in the discretion of the Court, “except as provided by the [FMC Rules] or any other Act.”[52]
[51] FM Act, s.79(2).
[52] FM Act,.s.79(3).
Rule 13.01 of the Federal Magistrates Court (Bankruptcy) Rules, 2006 (Cth)[53] provides that a person entitled to costs in a Bankruptcy Act proceeding “is entitled to costs in accordance with Order 62 of the Federal Court Rules unless the Court otherwise orders.”[54] The Costs Order is an order made in accordance with r.13.01 of the FMC (Bankruptcy) Rules.
[53] “FMC (Bankruptcy) Rules”
[54] FMC (Bankruptcy) Rules, r.13.01(1).
Order 62 of the Federal Court Rules adds little, save for O.62 r.30 which provides for the costs of a motion, application or proceeding stood over to trial, and in respect of which no order is made at trial, to be deemed to part of the party’s costs of the cause. The First Respondent says that notwithstanding O.62 r.30 of the Federal Court Rules the Court retains discretion as to costs and was not required to make the Costs Order in the form that it was made. In particular, the First Respondent says that the Applicant ought not be required to pay the costs of the unsuccessful and unnecessary interim applications of the Third and Fourth Respondents.
Finally, the Court notes that s.32 of the Bankruptcy Act provides that the Court may “make such orders as to costs as it thinks fit.” That section makes manifest that costs in bankruptcy proceedings are entirely within the Court’s discretion.[55]
[55] Hardwick Qd R at 266 per Dunn J, ALR at 643-644 per Dunn J.
It is clear that this Court has no inherent jurisdiction to re-open this matter and vary the Costs Order as sought by the First Respondent. The question then becomes does it have an implied incidental power to re-open and vary the Costs Order as sought by the First Respondent. In circumstances where:
a)costs are wholly within the discretion of the Court, albeit a discretion to be exercised judicially;
b)the grounds on which the Court may set aside or vary an order are expressly provided for in r.16.05(2) of the FMC Rules; and
c)the FM Act prescribes that the Court’s practice and procedure is to be in accordance with the FMC Rules, unless there is a contrary provision in the FM Act, or some other relevant Act,
the Court considers that the circumstances in which the Court may re-open a matter, by varying its previous order, are expressly dealt with in r.16.05(2) of the FMC Rules, and there is no other express basis set out in the FM Act or FMC Rules, or any other applicable Act or Rules, to do what the First Respondent seeks, then there can be no basis on which to imply incidental power to allow the Court to vary an order already entered.[56]
[56] DJL CLR at 248 per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ; HCA at para. 45 per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ; Parsons at 241 per Bowen CJ, Northrop and Toohey JJ.
The Court is fortified in its view by the High Court’s decision in DJL which found that there was no right to re-open an order of the Family Court in circumstances where an order of that Court had been finally entered.
There is therefore no basis for the operation of any implied incidental power to vary or set aside the Costs Order, particularly where that order is part of final orders, finalising the relevant litigation.
The Court notes that even if there was an implied incidental power the setting aside of part of a final order which finalises the litigation would require extreme circumstances.[57]
[57] Codelfa Construction at 38 per Mason and Wilson JJ.
Statutory Review
The First Respondent argues that there is a statutory basis for varying or setting aside the Costs Order, specifically under r.16.05(2)(a) and (e) of the FMC Rules.
Costs Order in the absence of the parties
The First Respondent submits that the Applicant was effectively absent at the handing down of the judgment and orders, because she did not understand what was happening.
The parties, including the Applicant, were physically present at the publication of the Reasons for Judgment and the making of the Costs Order on 18 October 2007.
There is no evidence to suggest that any party, including the Applicant, was “absent” by reason of any form of relevant incapacity (assuming for present purposes that incapacity equates to absence).
The First Respondent refers to Hurstville City Council in support of its argument. In that case, for the purposes of a rule not dissimilar to r.16.05(2) of the FMC Rules, the New South Wales Land and Environment Court found that:
a)the relevant party was, as disclosed by the transcript, present in court at the time the relevant order was made;
b)the relevant party was unrepresented; and
c)notwithstanding evidence of a medical condition which might have impaired the relevant party’s ability to comprehend the nature of the proceedings and what was being put by the court, found that there was no evidence to support that contention,
and therefore found that there was no order made in the absence of the relevant party. So it is here: the unrepresented Applicant was present in Court at the time the Costs Order was made; there is no evidence whatsoever of any incapacity, merely an assertion, made for the first time in the First Respondent’s Supplementary Submissions in relation to Costs, that the Applicant was effectively “absent”.
There is no basis for finding that the Costs Order was made in the absence of a party, namely the Applicant, for the purposes of r.16.05(2)(a) of the FMC Rules.
Does the Costs Order reflect the intention of the Court?
The First Respondent submits that there is no evidence that the Costs Order reflects the intention of the Court.
The First Respondent says that the question of costs “is not dealt with”[58] in the Reasons for Judgment in Skipworth (No 1), and was not otherwise dealt with when those Reasons were published and the Costs Order made. Therefore, it is said that the Costs Order can be set aside or varied under r.16.05(2)(e) of the FMC Rules. Equally, it might be said that there is no evidence that the Costs Order does not reflect the intention of the Court itself.
[58] First Respondent’s Supplementary Submissions in Relation to Costs, para. 33.
The First Respondent’s submission that the question of costs is not dealt with in the Reasons for Judgment is, strictly, incorrect. Having concluded that:
a)no vesting order ought issue in favour of the Applicant;
b)a vesting order ought to issue in favour of the Second Respondent; and
c)all other extant applications ought to be dismissed,[59]
the Court went on to say that the “applicant must pay the costs of each of the respondents.”[60] That is a positive indication, in the Reasons for Judgment, of the Court’s intent. In any event, in the absence of any contrary evidence, or of other indicative factors, the best and only evidence of the intention of the Court is that statement in the Reasons for Judgment and the Costs Order.
[59] Skipworth No 1 at para. 38 per Lucev FM.
[60] Skipworth No 1 at para. 39 per Lucev FM.
In this case both the Reasons for Judgment and the Costs Order indicate that it was the intention of the Court that an order for costs be made against the Applicant. The Costs Order cannot therefore be set aside or varied as not reflecting the intention of the Court.
Conclusion on Statutory Review
There is no basis for statutory review of the Costs Order on the bases posited by the First Respondent
Denial of procedural fairness
The right to be given an opportunity to be heard runs deep in the Australian legal system and its ancestors.[61] In Kioa v West Mason J said:
“It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is to be made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it”.[62]
[61] R v University of Cambridge (1723) 1 Strange 557 at 567 per Fortescue J; (1723) 98 ER 698 at 704 per Fortescue J: “[T]the objection for want of notice can never be got over.” In University of Ceylon v Fernando [1960] 1 WLR 223 at 232 the Privy Council spoke of natural justice requiring a knowledge of the nature of the issues and an opportunity given to state a case. In Ridge v Baldwin [1964] AC 40 at 132 Lord Hodson spoke of the right to be heard.
[62] (1985) 159 CLR 550 at 582 per Mason J.
Natural justice or procedural fairness is a common law right, which may be (but has not been for present purposes) excluded by legislation.[63] It is thus not a matter of inherent jurisdiction or implied incidental power.
[63]The Applicant was entitled to procedural fairness. Procedural fairness attaches to the substantive hearing as well as to any sanction, which must include costs.[64]
[64] Malone v Marr [1981] 2 NSWLR 894 (“Malone”); Goldsmith v Minister for Immigration and Multicultural Affairs [2006] FCAFC 130 at paras. 44-46 per Branson, Finn and Bennett JJ.
A denial of procedural fairness, and specifically a denial of the opportunity to be heard, may be cured by a re-hearing or further hearing and a re-hearing may be evidence of good faith.[65]
[65] Ridge v Baldwin [1964] AC 40 at 79 per Lord Reid; Turner v Fisher (1986) 4 MVR 265; Malone.
In this case, the Applicant given an opportunity to be heard in relation to the Costs Order, and having been made aware of the issues to be raised by the First Respondent, has said nothing about either a lack of procedural fairness in relation to the Costs Order or the merits of awarding costs in this case.
Where there has, as here, been a further hearing to remedy an alleged denial of procedural failure in relation to the Costs Order, the failure of the Applicant, who is the party affected by the Costs Order, to make any submissions whatsoever about the form or substance of that Costs Order, must weigh heavily against any submission made by a party not adversely affected by the Costs Order (that is, the First Respondent) that the Costs Order ought to be varied in a manner favourable to the Applicant. It will still be a matter for the Court to determine in the exercise of its discretion with respect to costs as to whether the Costs Order is varied, but the fact that the Applicant has not sought to vary it must weigh the scales heavily against the order now sought by the First Respondent.
Reconsideration of Costs Order
Given the denial of procedural fairness in relation to costs in relation to the Original Application it is appropriate that the Court reconsider the question of costs.
In view of the denial of procedural fairness, it is significant that the Applicant, given an opportunity to put submissions in relation to the Costs Order has not made any submission that the Costs Order ought to be varied or set aside. Further, many of the matters now argued by the First Respondent in favour of a setting aside or varying of the Costs Order against the Applicant are matters in relation to which there is no, or no sufficient, evidence to support the submission put forward. The Applicant’s failure to make any submissions with respect to the Costs Order allows the Court to infer that the Applicant takes no issue with the Costs Order. That is significant in that the only party adversely affected by the Costs Order is the Applicant. It is a significant factor against any variation of the Costs Order.
The First Respondent asserts that the Third and Fourth Respondents made an interim application for vesting orders. They did not. Rather, on 16 May 2007, they filed as required by the FMC Rules a Response seeking that the Bankrupt’s former interest in the Kardinya Property be vested in them. The Court ordered that that Response be treated as an Interim Application. The Interim Application was withdrawn at hearing. The Court accepts that the Third and Fourth Respondents filed the Response/Interim Application to ensure that their legitimate legal interests were protected, and not subordinated to whatever interests the Original Application sought to establish. The Interim Application was withdrawn, quite properly, at a time when it was apparent that those interests no longer required that the Interim Application be proceeded with, that being by reason of the Interim Application made by the Second Respondent that the Bankrupt’s former interest in the Kardinya Property vest in the Second Respondent. Given the nature of the submissions made by the Applicant at the hearing (which were very brief), and the fact that the Applicant was self-represented (and had been self-represented since 17 July 2007 when her former solicitors ceased to act), it is difficult to see what, if any, additional costs (and in particular, professional costs) were incurred or thrown away by the Applicant. There is no evidence of any such costs, and the Applicant has not made any submissions in the course of the Further Application to suggest that there were any such costs. The withdrawal of the Interim Application by the Third and Fourth Respondents does not therefore afford a basis for varying or setting aside the Costs Order.
The First Respondent also submitted that each party benefited from the vesting of the Bankrupt’s former interest in the Kardinya Property, and it was therefore manifestly inequitable that the Applicant bear the costs of each respondent in the Original Application. It is not however the case that each party would necessarily benefit from the vesting of the Bankrupt’s former interest in the Kardinya Property in the Second Respondent. That is because the property has been vested in the Second Respondent. Then, following the sale of the Kardinya Property, and the payment of expenses of and incidental to and consequent upon that sale and the monies due or owing under the mortgage to the Second Respondent, the Second Respondent is to commence interpleader proceedings in the Supreme Court of Western Australia to determine the person entitled to distribution of any surplus under s.109 of the Transfer of Land Act, 1892 (WA). Then, if any portion of that surplus would have been payable to the Bankrupt’s trustee but for the Disclaimer, that surplus is to be paid to the trustee for the benefit of the creditors of the bankrupt estate. It is not necessarily the case that all or any parties (apart from the Second Respondent) will therefore benefit from the vesting order made by this Court on 18 October 2007. There may be no surplus. Any surplus that there is may not be distributed between all respondents. In any event, the submission misconceives the nature of costs. There is no element of bonus or penalty in the ordinary award of costs. Costs are compensation to a successful party for liability for professional costs incurred in conducting proceedings.[66]
[66] Rentoul v Poynton [2008] FMCAfam 295 at para. 27 per Lucev FM; Bunnag v Minister for Immigration and Anor [2008] FMCA 430 at para. 49 per Lucev FM, and the cases cited in both of those cases.
The Court also does not consider it necessary to diminish any monies which might ultimately be distributed to be creditors of the Bankrupt’s estate by reason of an application which never had a reasonable prospect of success.
The First Respondent also suggests that the vesting of the disclaimed Kardinya Property ought to be seen as analogous, for costs purposes, to costs associated with a sequestration petition, where the petitioner’s costs are taxed and paid out of the bankrupt’s estate. The First Respondent also suggests that these proceedings were proceedings for the benefit of creditors. Given the wide discretion afforded to this Court in relation to costs in bankruptcy proceedings, the Court cannot see any reason why respondents forced to deal with the Applicant’s unsuccessful Original Application ought not receive their costs of doing so. That is particularly the case with respect to the Second Respondent, where the Court can see no reason to diminish the Second Respondent’s interest as mortgagee of the Kardinya Property by requiring payment out of the proceeds of the sale of the Kardinya Property (or any surplus) of the cost of an unsuccessful applicant for a vesting order. That is even more the case where the Applicant did not make the application, as is now asserted by the First Respondent, for the benefit of all the creditors, but rather entirely for her own benefit. Both the application originally filed on 21 March 2007 and the amended application filed on 17 May 2007 by the Applicant’s former solicitors, sought that the Bankrupt’s interest in the Kardinya Property vest in the Applicant alone. That was the final, and only, order sought by the Applicant.
The First Respondent also suggests that it was reasonable for someone to bring the Original Application, and having regard to the wide discretion available to this Court under s.133(1) of the Bankruptcy Act that the Applicant had reasonable prospects of success. It was not however necessary for anyone to bring the Original Application. Had no application been brought then the Bankrupt’s former interest in the Kardinya Property would have remained vested in the First Respondent. It was certainly not necessary for the Applicant to bring the Original Application, nor necessary for her to bring it in the form that she did, seeking that the Bankrupt’s former interest vest solely in her, particularly in circumstances where she was aware of the interests of other respondents (and in particular the Second Respondent as mortgagee) in the Bankrupt’s former interest in the Kardinya Property. In the circumstances, to bring an application seeking to vest the Bankrupt’s former interest solely in the Applicant was an application that was never likely to succeed. That much is manifest from the Reasons for Judgment in Skipworth (No 1): it is apparent that the Applicant did not have a reasonable prospect of succeeding, and did not succeed, because none of the matters which were weighed by the Court in considering the just and equitable requirement fell in the Applicant’s favour.[67]
[67] Skipworth (No 1) at paras. 22-32 per Lucev FM.
In all those circumstances, the Court, in the exercise of the broad discretion given to it to determine costs applications, remains of the view that the Applicant, having brought an unsuccessful application against each of the respondents, ought to pay the respondents’ costs of defending that application. The fact that the application was brought in the terms that it was, seeking to vest the Bankrupt’s interest in the Kardinya Property solely in the Applicant, rather than some more realistic outcome, simply reinforces that view. For those reasons, the Court does not propose to vary the Costs Order.
It follows that the Further Application made by the First Respondent must be dismissed.
Costs of this application
The First Respondent has brought an application which, save for proving that the Applicant was denied procedural fairness at the original hearing, has been unsuccessful. Save as to the issue of procedural fairness the matters put before the Court in support of the Further Application were wrong in law or fact, or unsupported, or without sufficient foundation, in the evidence. In those circumstances, and notwithstanding the denial of procedural fairness at the original hearing, the Further Application had no reasonable prospect of success, in any event. It would therefore seem appropriate that the First Respondent pay the costs of those other parties who took part in these proceedings, namely the Second, Third, Fourth, Sixth and Seventh Respondents. However, the Court will hear the parties as to costs, and the form of any costs order.
Conclusion and Order
In all of the above circumstances, the Further Application will be dismissed, and as indicated above, the Court will hear the parties as to costs and the form of any costs order in relation to the Further Application.
I certify that the preceding eighty-one (81) paragraphs are a true copy of the reasons for judgment of Lucev FM
Associate: S. Gough
Date: 9 May 2008
M Aronson and N Franklin, Review of Administrative Action (Sydney: Law Book Co, 1987)
pp 91-92.
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