Question:
<citphrase id="cp0.0">cited from="[2009] FCAFC 86">administrative law</citphrase>
<citphrase id="cp0.1">cited from="[2009] FCAFC 86">australian crime commission examiner issued notice to health services provider requiring production of medical records of eight female aboriginal children pursuant to s 29(1)(b) australian crime commission act 2002 (cth)</citphrase>
<citphrase id="cp0.2">cited from="[2009] FCAFC 86">whether the best interests of those eight children was a relevant consideration which the examiner was required to take into account in issuing that notice</citphrase>
<citphrase id="cp0.3">cited from="[2009] FCAFC 86">whether the examiner had regard to the best interests of those eight children</citphrase>
<citphrase id="cp0.4">cited from="[2009] FCAFC 86">consideration of whether the best interests of those children was a "primary consideration"</citphrase>
<citphrase id="cp1.0">cited from="[2009] FCA 642">practice and procedure</citphrase>
<citphrase id="cp1.1">cited from="[2009] FCA 642">interlocutory injunctions</citphrase>
<citphrase id="cp1.2">cited from="[2009] FCA 642">whether serious question to be tried</citphrase>
<citphrase id="cp1.3">cited from="[2009] FCA 642">proposed examinations under australian crime commission act 2002 (cth)</citphrase>
<citphrase id="cp1.4">cited from="[2009] FCA 642">applicants seeking judicial review in relation to special investigation authorisation and determination made by first respondent and summonses issued to applicants</citphrase>
<citphrase id="cp1.5">cited from="[2009] FCA 642">whether objective element in test to be applied by court in reviewing examiners' decisions to issue summonses</citphrase>
<citphrase id="cp1.6">cited from="[2009] FCA 642">whether examiners' reasons required under act must include findings on material questions of fact or reference to evidence or other material on which findings based</citphrase>
<citphrase id="cp1.7">cited from="[2009] FCA 642">whether, as part of requirement under act that notations to summonses be accompanied by statement setting out rights and obligations, statement must set out rights and obligations of persons "otherwise given" summonses</citphrase>
<citphrase id="cp1.8">cited from="[2009] FCA 642">whether extensions of special investigation authorisation and determination invalid</citphrase>
<citphrase id="cp1.9">cited from="[2009] FCA 642">whether summonses oppressive in way which means issuing of summonses beyond power</citphrase>
<citphrase id="cp1.10">cited from="[2009] FCA 642">whether summonses issued pursuant to valid resolution of first respondent</citphrase>
<citphrase id="cp1.11">cited from="[2009] FCA 642">whether balance of convenience favours grant of injunctions    held: interlocutory injunctions refused</citphrase>
<citphrase id="cp1.12">cited from="[2009] FCA 642">insufficient prospects of success on five of six grounds to justify restraining examiners from conducting proposed examinations and in relation to sixth ground, on which respondents conceded serious question to be tried, balance of convenience favours refusal of relief.</citphrase>
<citphrase id="cp2.0">cited from="[2009] FCA 580">administrative law</citphrase>
<citphrase id="cp2.1">cited from="[2009] FCA 580">validity of determination by board of the australian crime commission</citphrase>
<citphrase id="cp2.2">cited from="[2009] FCA 580">whether within ambit of the australian crime commission act 2002 (cth)</citphrase>
<citphrase id="cp2.3">cited from="[2009] FCA 580">whether determination exceeded powers of the board of the australian crime commission   administrative law</citphrase>
<citphrase id="cp2.4">cited from="[2009] FCA 580">validity of summons issued by the australian crime commission</citphrase>
<citphrase id="cp2.5">cited from="[2009] FCA 580">whether examiner satisfied it was reasonable to issue the summons</citphrase>
<citphrase id="cp2.6">cited from="[2009] FCA 580">whether failure to record in writing the reasons for the issue of the summons a breach of s 25d of the acts interpretation act 1901 (cth)</citphrase>
<citphrase id="cp2.7">cited from="[2009] FCA 580">whether examiner's reasons a recent invention</citphrase>
<citphrase id="cp2.8">cited from="[2009] FCA 580">whether summons issued in accordance with the australian crime commission act 2002 (cth)</citphrase>
<citphrase id="cp2.9">cited from="[2009] FCA 580">whether summons otherwise defective    practice and procedure</citphrase>
<citphrase id="cp2.10">cited from="[2009] FCA 580">public interest immunity</citphrase>
<citphrase id="cp2.11">cited from="[2009] FCA 580">redaction of documents</citphrase>
<citphrase id="cp2.12">cited from="[2009] FCA 580">effect on burden of proof</citphrase>
<citphrase id="cp2.13">cited from="[2009] FCA 580">consequences of allegedly unjustifiable failure to discover relevant documents</citphrase>
<citphrase id="cp2.14">cited from="[2009] FCA 580">whether defence should be struck out    practice and procedure</citphrase>
<citphrase id="cp2.15">cited from="[2009] FCA 580">further submissions after close of oral argument</citphrase>
<citphrase id="cp2.16">cited from="[2009] FCA 580">requirement for leave</citphrase>
<citphrase id="cp3.0">cited from="[2009] FCA 119">administrative law</citphrase>
<citphrase id="cp3.1">cited from="[2009] FCA 119">notice served by australian crime commission</citphrase>
<citphrase id="cp3.2">cited from="[2009] FCA 119">notice requires production of documents</citphrase>
<citphrase id="cp3.3">cited from="[2009] FCA 119">need for documents to be " specified "</citphrase>
<citphrase id="cp3.4">cited from="[2009] FCA 119">ambit of power conferred</citphrase>
<citphrase id="cp3.5">cited from="[2009] FCA 119">reasonableness of time permitted for production    statutes</citphrase>
<citphrase id="cp3.6">cited from="[2009] FCA 119">statutory duty to record reasons</citphrase>
<citphrase id="cp4.0">cited from="[2008] FCA 1752">administrative law</citphrase>
<citphrase id="cp4.1">cited from="[2008] FCA 1752">applicant challenges validity of newstart activity agreements under the social security act 1991 (cth)</citphrase>
<citphrase id="cp4.2">cited from="[2008] FCA 1752">agreements required by the act to be "between the person and the secretary"</citphrase>
<citphrase id="cp4.3">cited from="[2008] FCA 1752">agreements signed by employees of workdirections australia pty ltd</citphrase>
<citphrase id="cp4.4">cited from="[2008] FCA 1752">delegations</citphrase>
<citphrase id="cp4.5">cited from="[2008] FCA 1752">agreements between the applicant and the secretary for the purposes of the act</citphrase>
<citphrase id="cp4.6">cited from="[2008] FCA 1752">agreements valid even though employees of workdirections australia did not identify source of power to enter agreements</citphrase>
<citphrase id="cp4.7">cited from="[2008] FCA 1752">agreements valid despite change of government since agreements entered into</citphrase>
<citphrase id="cp4.8">cited from="[2008] FCA 1752">agreements valid despite mistake in agreements as to the name of the employment services provider</citphrase>
<citphrase id="cp4.9">cited from="[2008] FCA 1752">agreements in a form approved by the secretary</citphrase>
<citphrase id="cp5.0">cited from="[2006] FCA 660">administrative law</citphrase>
<citphrase id="cp5.1">cited from="[2006] FCA 660">australian crime commission</citphrase>
<citphrase id="cp5.2">cited from="[2006] FCA 660">special investigation</citphrase>
<citphrase id="cp5.3">cited from="[2006] FCA 660">determination of the class or classes of persons to participate in the investigation</citphrase>
<citphrase id="cp5.4">cited from="[2006] FCA 660">summons to appear before an examiner</citphrase>
<citphrase id="cp5.5">cited from="[2006] FCA 660">form of summons</citphrase>
<citphrase id="cp6.0">cited from="[2006] FCAFC 54">australian crime commission</citphrase>
<citphrase id="cp6.1">cited from="[2006] FCAFC 54">investigation, special investigation, authorization of intelligence operations and investigations, determine whether a special operation or investigation. practice and procedure</citphrase>
<citphrase id="cp6.2">cited from="[2006] FCAFC 54">validity of determination or authorization, requirement that authorization or determination be in writing, whether requirement can be satisfied in one instrument by reference to another instrument, whether instruments can be read together. practice and procedure</citphrase>
<citphrase id="cp6.3">cited from="[2006] FCAFC 54">whether an authorization or determination can be amended.</citphrase>
<citphrase id="cp7.0">cited from="[2004] FCA 1475">statutes</citphrase>
<citphrase id="cp7.1">cited from="[2004] FCA 1475">australian crime commission act 2002 (cth)</citphrase>
<citphrase id="cp7.2">cited from="[2004] FCA 1475">whether board of australian crime commission had power to amend an authorisation and determination for a special investigation</citphrase>
<citphrase id="cp7.3">cited from="[2004] FCA 1475">whether a new determination required under s 7c  statutes</citphrase>
<citphrase id="cp7.4">cited from="[2004] FCA 1475">acts interpretation act 190,1 s 33(3)</citphrase>
<citphrase id="cp7.5">cited from="[2004] FCA 1475">meaning of "instrument"</citphrase>
<citphrase id="cp7.6">cited from="[2004] FCA 1475">whether application limited to instruments of a legislative character</citphrase>
<citphrase id="cp7.7">cited from="[2004] FCA 1475">whether contrary intention precluded reliance on s 33(3)  statutes</citphrase>
<citphrase id="cp7.8">cited from="[2004] FCA 1475">australian crime commission act 2002 (cth), s 30(2)</citphrase>
<citphrase id="cp7.9">cited from="[2004] FCA 1475">whether abrogated privilege against self-incrimination in relation to foreign offences</citphrase>
<citphrase id="cp8.0">cited from="[2004] FCA 1219">constitution</citphrase>
<citphrase id="cp8.1">cited from="[2004] FCA 1219">australian crime commission act 2002 (cth)</citphrase>
<citphrase id="cp8.2">cited from="[2004] FCA 1219">abolition of privilege against self-incrimination and grant of use immunity</citphrase>
<citphrase id="cp8.3">cited from="[2004] FCA 1219">whether impermissibly interferes with state courts. statutes</citphrase>
<citphrase id="cp8.4">cited from="[2004] FCA 1219">amending or abrogating the common law</citphrase>
<citphrase id="cp8.5">cited from="[2004] FCA 1219">one australian common law</citphrase>
<citphrase id="cp8.6">cited from="[2004] FCA 1219">limited legislative competence of commonwealth and state parliaments to abrogate the common law</citphrase>
<citphrase id="cp8.7">cited from="[2004] FCA 1219">effect of abrogation by the commonwealth parliament  statutes</citphrase>
<citphrase id="cp8.8">cited from="[2004] FCA 1219">statutory duty to record reasons for a decision</citphrase>
<citphrase id="cp8.9">cited from="[2004] FCA 1219">person summoned to appear at examination under australian crime commission act 2002 (cth)</citphrase>
<citphrase id="cp8.10">cited from="[2004] FCA 1219">whether statute impliedly confers a right on a witness to be given the record</citphrase>
<citphrase id="cp8.11">cited from="[2004] FCA 1219">purpose of the statutory provision</citphrase>
<citphrase id="cp8.12">cited from="[2004] FCA 1219">no right to reasons under the administrative decisions (judicial review) act 1977 (cth)</citphrase>
<citphrase id="cp9.0">cited from="[2004] FCAFC 101">practice  procedure</citphrase>
<citphrase id="cp9.1">cited from="[2004] FCAFC 101">statutory interpretation</citphrase>
<citphrase id="cp9.2">cited from="[2004] FCAFC 101">australian crime commission</citphrase>
<citphrase id="cp9.3">cited from="[2004] FCAFC 101">appeal from a single judge</citphrase>
<citphrase id="cp9.4">cited from="[2004] FCAFC 101">examination for purposes of a 'special operation/investigation'</citphrase>
<citphrase id="cp9.5">cited from="[2004] FCAFC 101">where appellant not yet charged but claimed that a charge was imminent</citphrase>
<citphrase id="cp9.6">cited from="[2004] FCAFC 101">whether australian crime commission act 2002 (cth) abrogates privilege against self-incrimination.</citphrase>
<citphrase id="cp10.0">cited from="[2004] HCA 14">network ten pty limited v tcn channel nine pty limited  copyright</citphrase>
<citphrase id="cp10.1">cited from="[2004] HCA 14">infringement</citphrase>
<citphrase id="cp10.2">cited from="[2004] HCA 14">television broadcast</citphrase>
<citphrase id="cp10.3">cited from="[2004] HCA 14">television programme broadcast by appellant contained excerpts from programmes previously broadcast by respondent</citphrase>
<citphrase id="cp10.4">cited from="[2004] HCA 14">each excerpt of brief duration</citphrase>
<citphrase id="cp10.5">cited from="[2004] HCA 14">meaning of the "subject matter" of broadcast copyright</citphrase>
<citphrase id="cp10.6">cited from="[2004] HCA 14">whether each visual image capable of being observed as a separate image on a television screen and accompanying sounds is "a television broadcast" in which copyright subsists</citphrase>
<citphrase id="cp10.7">cited from="[2004] HCA 14">whether a "substantial part" of a television broadcast must be copied to constitute infringement.  statutes</citphrase>
<citphrase id="cp10.8">cited from="[2004] HCA 14">construction and interpretation</citphrase>
<citphrase id="cp10.9">cited from="[2004] HCA 14">relevance of legislative history and context</citphrase>
<citphrase id="cp10.10">cited from="[2004] HCA 14">relevance of legislative history and context of similar united kingdom statute</citphrase>
<citphrase id="cp10.11">cited from="[2004] HCA 14">copyright act 1968 (cth), ss 25(4) , 87 .</citphrase>
<citphrase id="cp11.0">cited from="[2000] HCA 22">the queen v hughes  constitutional law (cth)</citphrase>
<citphrase id="cp11.1">cited from="[2000] HCA 22">accused made available in perth "prescribed interests" relating to transactions to be carried out in the united states of america</citphrase>
<citphrase id="cp11.2">cited from="[2000] HCA 22">prohibition of offering of "prescribed interests" in undertakings to be performed "whether in australia or elsewhere"</citphrase>
<citphrase id="cp11.3">cited from="[2000] HCA 22">director of public prosecutions of the commonwealth instituted prosecution on indictment for making available "prescribed interests" contrary to s 1064(1) and s 1311(1)(a) of the corporations law of western australia</citphrase>
<citphrase id="cp11.4">cited from="[2000] HCA 22">whether director of public prosecutions of the commonwealth had power to prosecute accused</citphrase>
<citphrase id="cp11.5">cited from="[2000] HCA 22">whether any offence known to the law</citphrase>
<citphrase id="cp11.6">cited from="[2000] HCA 22">whether offence against the laws of the commonwealth or of western australia</citphrase>
<citphrase id="cp11.7">cited from="[2000] HCA 22">whether director of public prosecutions of the commonwealth validly authorised to receive power to prosecute state offences</citphrase>
<citphrase id="cp11.8">cited from="[2000] HCA 22">whether director of public prosecutions of the commonwealth validly subjected to a duty to exercise power to prosecute state offences.  constitutional law (wa)</citphrase>
<citphrase id="cp11.9">cited from="[2000] HCA 22">whether western australian laws gave power to prosecute offences to the director of public prosecutions of the commonwealth</citphrase>
<citphrase id="cp11.10">cited from="[2000] HCA 22">whether state laws invalid as purporting to convert offences against state law into offences against federal law</citphrase>
<citphrase id="cp11.11">cited from="[2000] HCA 22">whether state laws invalid as constituting an abdication of state legislative power</citphrase>
<citphrase id="cp11.12">cited from="[2000] HCA 22">whether state laws invalid for want of sufficient specification.  companies</citphrase>
<citphrase id="cp11.13">cited from="[2000] HCA 22">corporations law</citphrase>
<citphrase id="cp11.14">cited from="[2000] HCA 22">interrelated federal, state and territory legislation</citphrase>
<citphrase id="cp11.15">cited from="[2000] HCA 22">offences against corporations law of western australia</citphrase>
<citphrase id="cp11.16">cited from="[2000] HCA 22">whether offence against the laws of the commonwealth or of western australia</citphrase>
<citphrase id="cp11.17">cited from="[2000] HCA 22">whether director of public prosecutions of the commonwealth validly authorised to prosecute offences against state law</citphrase>
<citphrase id="cp11.18">cited from="[2000] HCA 22">constitutional validity of interrelated legislation as applicable to the offence alleged.  criminal law and practice</citphrase>
<citphrase id="cp11.19">cited from="[2000] HCA 22">companies</citphrase>
<citphrase id="cp11.20">cited from="[2000] HCA 22">offence against law of western australia</citphrase>
<citphrase id="cp11.21">cited from="[2000] HCA 22">whether director of public prosecutions of the commonwealth validly authorised to prosecute offence.</citphrase>
<citphrase id="cp12.0">cited from="[2000] HCA 13">bond v the queen  criminal law</citphrase>
<citphrase id="cp12.1">cited from="[2000] HCA 13">offences against state law</citphrase>
<citphrase id="cp12.2">cited from="[2000] HCA 13">appeal against sentence by the prosecution</citphrase>
<citphrase id="cp12.3">cited from="[2000] HCA 13">power of director of public prosecutions of the commonwealth to bring appeal against sentence</citphrase>
<citphrase id="cp12.4">cited from="[2000] HCA 13">distinction between prosecution and appeal.  constitutional law</citphrase>
<citphrase id="cp12.5">cited from="[2000] HCA 13">whether state law can unilaterally vest functions in officers of the commonwealth</citphrase>
<citphrase id="cp12.6">cited from="[2000] HCA 13">inconsistency between commonwealth and state laws</citphrase>
<citphrase id="cp12.7">cited from="[2000] HCA 13">inapplicability of de facto officers doctrine.  appeal</citphrase>
<citphrase id="cp12.8">cited from="[2000] HCA 13">whether appellate court will entertain issue not raised below</citphrase>
<citphrase id="cp12.9">cited from="[2000] HCA 13">irrelevant where issue is as to competence of proceedings below.</citphrase>
<citphrase id="cp15.0">cited from="[1989] FCA 384">practice and procedure</citphrase>
<citphrase id="cp15.1">cited from="[1989] FCA 384">usual undertaking as to damages</citphrase>
<citphrase id="cp15.2">cited from="[1989] FCA 384">practice note no. 3</citphrase>
<citphrase id="cp15.3">cited from="[1989] FCA 384">whether a non-party to the litigation may be "any party adversely affected" by the interlocutory injunction</citphrase>
<citphrase id="cp15.4">cited from="[1989] FCA 384">whether undertaking should be extended subsequently to include such a non-party.</citphrase>
<citphrase id="cp16.0">citing from="[2010] FCA 803">administrative law</citphrase>
<citphrase id="cp16.1">citing from="[2010] FCA 803">challenge to authorisation and determination made by resolution of board of first respondent under australian crime commission act 2002 (cth)</citphrase>
<citphrase id="cp16.2">citing from="[2010] FCA 803">instrument authorised investigation and determined it to be special investigation</citphrase>
<citphrase id="cp16.3">citing from="[2010] FCA 803">whether determination invalid because board's resolution was not a determination in writing that the investigation was a special investigation</citphrase>
<citphrase id="cp16.4">citing from="[2010] FCA 803">whether determination invalid because chair of board did not convene or attend meeting at which determination made</citphrase>
<citphrase id="cp16.5">citing from="[2010] FCA 803">whether determination invalid because of various deficiencies in resolution of the board</citphrase>
<citphrase id="cp16.6">citing from="[2010] FCA 803">whether determination invalid because board did not set out the reasons for decision including findings on material questions of fact and refer to evidence or other material on which those findings were based</citphrase>
<citphrase id="cp16.7">citing from="[2010] FCA 803">whether determination invalid because purposes stated in determination exceed scope of investigation under act</citphrase>
<citphrase id="cp16.8">citing from="[2010] FCA 803">whether determination invalid because board did not actually draw conclusion as to whether ordinary police methods of investigation were likely to be effective</citphrase>
<citphrase id="cp16.9">citing from="[2010] FCA 803">whether determination invalid because board did not resolve class or classes of persons who were to be able to participate in investigation</citphrase>
<citphrase id="cp16.10">citing from="[2010] FCA 803">whether determination invalid because board did not identify the circumstances, or allegations, constituting the federally relevant criminal activity held: application dismissed</citphrase>
<citphrase id="cp16.11">citing from="[2010] FCA 803">all grounds of challenge to determination fail  administrative law</citphrase>
<citphrase id="cp16.12">citing from="[2010] FCA 803">challenge to a summons issued by second respondent under australian crime commission act 2002 (cth)</citphrase>
<citphrase id="cp16.13">citing from="[2010] FCA 803">whether summons invalid because determinations upon which they are based are invalid</citphrase>
<citphrase id="cp16.14">citing from="[2010] FCA 803">whether summons invalid because copy of determination did not accompany summons</citphrase>
<citphrase id="cp16.15">citing from="[2010] FCA 803">whether summons invalid because it did not require applicant to give evidence as "witness"</citphrase>
<citphrase id="cp16.16">citing from="[2010] FCA 803">whether summons invalid because it was not accompanied by written statement of rights and obligations</citphrase>
<citphrase id="cp16.17">citing from="[2010] FCA 803">whether second respondent could not have been satisfied that it was reasonable in all circumstances to issue summons held: application dismissed</citphrase>
<citphrase id="cp16.18">citing from="[2010] FCA 803">all grounds of challenge to summons fail</citphrase>
<citphrase id="cp17.0">citing from="[2010] FCAFC 63">practice and procedure</citphrase>
<citphrase id="cp17.1">citing from="[2010] FCAFC 63">costs</citphrase>
<citphrase id="cp17.2">citing from="[2010] FCAFC 63">whether costs should follow the event</citphrase>
<citphrase id="cp17.3">citing from="[2010] FCAFC 63">what was the event</citphrase>
<citphrase id="cp17.4">citing from="[2010] FCAFC 63">whether costs orders should reflect circumstance that the appellant claimed two different categories of relief, on only one of which he succeeded.</citphrase>
<citphrase id="cp18.0">citing from="[2010] FCA 553">administrative law</citphrase>
<citphrase id="cp18.1">citing from="[2010] FCA 553">whether certain decisions and instruments made by the australian crime commission were invalid because the commission and its board failed to comply with relevant statutory provisions governing the making of those decisions and instruments</citphrase>
<citphrase id="cp18.2">citing from="[2010] FCA 553">decisions and instruments held to be valid</citphrase>
<citphrase id="cp18.3">citing from="[2010] FCA 553">whether certain documents seized during the execution of a search warrant were protected from disclosure by legal professional privilege</citphrase>
<citphrase id="cp18.4">citing from="[2010] FCA 553">legal professional privilege attached to some documents (but not all)</citphrase>
<citphrase id="cp18.5">citing from="[2010] FCA 553">in respect of those documents originally protected by privilege, privilege held to have been waived</citphrase>
<citphrase id="cp19.0">citing from="[2010] FCAFC 15">administrative law</citphrase>
<citphrase id="cp19.1">citing from="[2010] FCAFC 15">review of a decision of the australian crime commission</citphrase>
<citphrase id="cp19.2">citing from="[2010] FCAFC 15">decision made under s 28 of the australian crime commission act 2002 (cth) to issue a summons to the appellant</citphrase>
<citphrase id="cp19.3">citing from="[2010] FCAFC 15">whether the examiner made a jurisdictional error in failing to differentiate between a special operation and a special investigation</citphrase>
<citphrase id="cp19.4">citing from="[2010] FCAFC 15">where the examiner's record of decision contains an error of law on the face of the record</citphrase>
<citphrase id="cp19.5">citing from="[2010] FCAFC 15">where no evidence or explanation given for the examiner's apparent error</citphrase>
<citphrase id="cp19.6">citing from="[2010] FCAFC 15">where examiner fundamentally misunderstood the statutory basis for his authority to issue the summons</citphrase>
<citphrase id="cp19.7">citing from="[2010] FCAFC 15">appeal allowed</citphrase>
<citphrase id="cp20.0">citing from="[2010] FCAFC 4">administrative law</citphrase>
<citphrase id="cp20.1">citing from="[2010] FCAFC 4">australian crime commission examiner issued notice to health services provider requiring production of medical records of adult and child patients pursuant to s 29(1)(b) australian crime commission act 2002 (cth)</citphrase>
<citphrase id="cp20.2">citing from="[2010] FCAFC 4">whether the examiner was obliged to consider the interests of the adult patients, the cost and impracticability of compliance, and alternative means of obtaining the information</citphrase>
<citphrase id="cp20.3">citing from="[2010] FCAFC 4">if so, whether those obligations were shown not to have been discharged</citphrase>
<citphrase id="cp20.4">citing from="[2010] FCAFC 4">whether the examiner was bound to make enquiries</citphrase>
<citphrase id="cp20.5">citing from="[2010] FCAFC 4">whether the examiner could have been satisfied that it was reasonable in all the circumstances to issue the notice</citphrase>
<citphrase id="cp20.6">citing from="[2010] FCAFC 4">whether the examiner complied with the reasons requirement in s 29(1a)</citphrase>
<citphrase id="cp20.7">citing from="[2010] FCAFC 4">whether the examiner was required to consider the best interests of the child patients and, if so, whether that obligation was shown not to have been discharged</citphrase>
<citphrase id="cp21.0">citing from="[2009] FCA 1027">administrative law</citphrase>
<citphrase id="cp21.1">citing from="[2009] FCA 1027">challenge to summons issued under s 28(1) of the australian crime commission act 2002 (cth) and subsequent examination</citphrase>
<citphrase id="cp21.2">citing from="[2009] FCA 1027">whether summons invalid because determination accompanying summons as required by s 28(2) was not a facsimile copy of the relevant determination</citphrase>
<citphrase id="cp21.3">citing from="[2009] FCA 1027">whether invalid because summons did not indicate that applicant had to appear "as a witness" and stated that applicant was to appear before "an" examiner and not "the" examiner</citphrase>
<citphrase id="cp21.4">citing from="[2009] FCA 1027">whether invalid because summons failed to comply with s 29a(3) by not setting out rights and obligations in s 29b(3) and (4) in addition to those in s 29b(1) and (2)</citphrase>
<citphrase id="cp21.5">citing from="[2009] FCA 1027">whether examination unlawful because examiner failed to record in writing reasons for issuing summons before he issued the summons   held: application dismissed</citphrase>
<citphrase id="cp21.6">citing from="[2009] FCA 1027">copy of determination provided complied with act</citphrase>
<citphrase id="cp21.7">citing from="[2009] FCA 1027">evident that applicant was to appear as witness</citphrase>
<citphrase id="cp21.8">citing from="[2009] FCA 1027">summons was issued by examiner and returnable before him</citphrase>
<citphrase id="cp21.9">citing from="[2009] FCA 1027">s 29a(3) only requires a statement setting out the rights and obligations of a person served or otherwise given a summons by the commissioner or an examiner</citphrase>
<citphrase id="cp21.10">citing from="[2009] FCA 1027">validation of summons under australian crime commission amendment act 2007 (cth) applies to examination pursuant to summons.   administrative law</citphrase>
<citphrase id="cp21.11">citing from="[2009] FCA 1027">challenge to notice to produce issued under section 29 of the australian crime commission act 2002 (cth) and production of dvds pursuant to notice</citphrase>
<citphrase id="cp21.12">citing from="[2009] FCA 1027">whether invalid because notice referred to determination of incorrect date</citphrase>
<citphrase id="cp21.13">citing from="[2009] FCA 1027">whether invalid because notice failed to comply with s 29a(3) by not setting out rights and obligations in s 29b(3) and (4) in addition to those in s 29b(1) and (2)</citphrase>
<citphrase id="cp21.14">citing from="[2009] FCA 1027">whether invalid because notice did not indicate person to whom production was to be made</citphrase>
<citphrase id="cp21.15">citing from="[2009] FCA 1027">whether production unlawful because, even if notice did indicate person to whom production was to be made, dvds were not produced to that person</citphrase>
<citphrase id="cp21.16">citing from="[2009] FCA 1027">whether invalid because notice required production of documents "forthwith"</citphrase>
<citphrase id="cp21.17">citing from="[2009] FCA 1027">whether production unlawful because examiner failed to record in writing reasons for issuing notice before he issued the notice   held: application dismissed</citphrase>
<citphrase id="cp21.18">citing from="[2009] FCA 1027">s 29 does not require reference to determination</citphrase>
<citphrase id="cp21.19">citing from="[2009] FCA 1027">s 29a(3) only requires a statement setting out the rights and obligations of a person served or otherwise given a summons by the commissioner or an examiner</citphrase>
<citphrase id="cp21.20">citing from="[2009] FCA 1027">word "produce" in s 29(1) does not require production directly to person specified in notice</citphrase>
<citphrase id="cp21.21">citing from="[2009] FCA 1027">requiring production "forthwith" not unreasonable</citphrase>
<citphrase id="cp21.22">citing from="[2009] FCA 1027">validation of notice under australian crime commission amendment act 2007 (cth) applies to production pursuant to notice.</citphrase>
</citphrases>
<citances>
<sentence from="[2010] FCA 803" id="cs0">I heard this matter in Darwin on 25 and 26 March 2009. Soon after I reserved my decision in this matter, two judges delivered three decisions on similar and, in some cases, identical, factual and legal issues. They were: SS v Australian Crime Commission (2009) 256 ALR 474 ; [2009] FCA 580 (" SS ") per Jagot J, delivered on 29 May 2009; AA v Board of the Australian Crime Commission (2009) 178 FCR 171 ; [2009] FCA 642 (" AA1 ") per Besanko J, delivered on 22 June 2009; and GG v Australian Crime Commission [2009] FCA 759 (" GG ") per Besanko J, delivered on 20 July 2009. </sentence>
<sentence from="[2010] FCAFC 63" id="cs1"/>
<sentence from="[2010] FCA 553" id="cs2">After the hearing of these proceedings had concluded, the Full Court (Downes, Jessup and Tracey JJ) delivered judgment in the appeal from the decision of Besanko J in GG [2009] FCA 759 ( GG v Australian Crime Commission [2010] FCAFC 15 ; (2010) 182 FCR 513). Although the appeal was allowed, the Full Court agreed with the conclusions which Besanko J had reached in respect of the point presently under consideration. The observations of the Full Court are directly in point in principle and also on the facts. The meeting under consideration in GG v Australian Crime Commission was the very same meeting of the Board of the ACC held on 25 June 2008 which is under challenge in the present proceedings. However, no issue estoppel arises because the person named as "GG" in GG [2010] FCAFC 15 ; 182 FCR 513 is not the same person named as "GG" in proceeding NSD 460 of 2009.  It was also submitted that, in any event, his Honour was correct in the views which he expressed in AA [2009] FCA 642 and in GG [2009] FCA 759.  As Flick J observed in AB Pty Ltd v Australian Crime Commission [2009] FCA 119 ; (2009) 175 FCR 296 (AB) at [54] , an observation that was endorsed by this Court in NTD8 at [73], "[t]hose against whom the powers conferred by the 2002 Act are exercised are entitled to have confidence that the power is being lawfully invoked". In NTD8, as here, the Statement of Reasons, the Statement of Facts and Circumstances and the Legal Submissions in Support were formulaic and uninformative and did not focus attention on the specific considerations to which the Examiner had regard. Again they seem to bear the hallmarks of a standard form document (see the observations of this Court in NTD8 at [34]; Flick J in AB at [54] and Besanko J in GG v Australian Crime Commission [2009] FCA 759 at [51] ). However, deficiencies of this nature will not necessarily invalidate a notice: see, for example, AB at [59] per Flick J and SS v ACC [2009] FCA 580 at [97] per Jagot J.
And at [96], the Court said:
 As to the purpose of the reasons, the appellant's essential point was that although the legislation does not provide specifically for a right to reasons for the decision, such a right should be implied by reason of the existence of the right to judicial review of the decision, the terms of s 29(1A) itself, and the requirements of s 25D of the Acts Interpretation Act . This argument was accepted by Besanko J in AA v Board of the Australian Crime Commission [2009] FCA 642 and in GG v Australian Crime Commission [2009] FCA 759. In the former case, at [62]---[64], his Honour said: The applicant submits that s 20 of the Acts Interpretation Act is not engaged by s 7B(3) and s 7E of the ACC Act because the reference to the Commissioner of the Australian Federal Police in s 7B(3) is not a mention or reference to a person holding or occupying a particular office or position in general terms. The submission is that a mention or reference in an Act to, for example, a director of a company or an officer of an organisation would be a mention or reference in general terms, but a mention or reference to an office occupied by one person is not a mention or reference in general terms . For the reasons given by all the judges in GG [2009] FCA 759 and GG [2010] FCAFC 15 ; 182 FCR 513 (both at trial and on appeal) , the present applicants' challenge to the validity of the resolution of the Board of the ACC made on 14 June 2007 which authorised the 2007 Determination and their challenge to the validity of the resolution of that Board made on 25 June 2008 which authorised the 2008 Determination both fail. It also follows that the applicants' contentions that both the 2007 Determination and the 2008 Determination were not valid authorisations and determinations in writing for the purposes of ss 7C(1)(c), 7C(1)(d) and 7C(3) of the Act must also be rejected. </sentence>
<sentence from="[2010] FCAFC 15" id="cs3"/>
<sentence from="[2010] FCAFC 4" id="cs4">90 It should also be noted that in AB counsel for the ACC conceded that the content of the obligation in s 29(1A) was informed by s 25D of the Acts Interpretation Act 1901 (Cth) (which obliges a decision-maker required to give written reasons for a decision to "set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based"). In this case the respondents made no such concession but asserted --- correctly in our opinion --- that s 25D of the Acts Interpretation Act was not engaged by the obligation under s 29(1A) since that requires the examiner to record, but not to 'give', written reasons for the decision. That this is the correct approach is confirmed by decisions about the analogous provision in s 28(1A) of the Act: see Barnes v Boulton [2004] FCA 1219 ; (2004) 139 FCR 356 ; SS v ACC [2009] FCA 580 at [90] ; AA v Board of the ACC [2009] FCA 642 at [30] ; GG v ACC [2009] FCA 759 at [45] .  89 We agree that the sufficiency of the Statement of Reasons was open to criticism. The appellant was correct to draw attention to what counsel described as the 'formulae approach' of the reasons and to the importance of observing the requirements of s 29(1A). As Flick J observed in AB Pty Ltd v Australian Crime Commission [2009] FCA 119 ; (2009) 175 FCR 296 ( AB ) at [54], an observation that was endorsed by this Court in NTD8 at [73], "[t]hose against whom the powers conferred by the 2002 Act are exercised are entitled to have confidence that the power is being lawfully invoked". In NTD8 , as here, the Statement of Reasons, the Statement of Facts and Circumstances and the Legal Submissions in Support were formulaic and uninformative and did not focus attention on the specific considerations to which the Examiner had regard. Again they seem to bear the hallmarks of a standard form document (see the observations of this Court in NTD8 at [34]; Flick J in AB at [54] and Besanko J in GG v Australian Crime Commission [2009] FCA 759 at [51] ). However, deficiencies of this nature will not necessarily invalidate a notice: see, for example, AB at [59] per Flick J and SS v ACC [2009] FCA 580 at [97] per Jagot J. </sentence>
<sentence from="[2009] FCA 1027" id="cs5">Yet SS's construction would require the CEO to give written notice of the cancellation of the notation to persons both served or otherwise given the summons or notice by the ACC and persons (unknown to the CEO) to whom such a person made disclosure (and so on in accordance with s 29B(4)).

 These considerations indicate that the ACC's submission must be accepted. "

(See also GG v Australian Crime Commission [2009] FCA 759 at [34] - [37]. )
  As to the former submission, a similar submission was made and rejected by me in GG v Australian Crime Commission [2009] FCA 759. I said (at [31]):

 "The first ground of challenge to the second summons is that it failed to state that the applicant was required to give evidence as a "witness". It is submitted that the second summons was therefore deficient "on its face".</sentence>
</citances>
<legistitles>
<title id="l0">AUSTRALIAN CRIME COMMISSION ACT 2002 </title>
<title id="l1">AUSTRALIAN CRIME COMMISSION ACT 2002 - SECT 1 Short title [see Note 1]</title>
<title id="l2">AUSTRALIAN CRIME COMMISSION ACT 2002 - SECT 4 Interpretation</title>
<title id="l3">AUSTRALIAN CRIME COMMISSION ACT 2002 - SECT 6 Extension to external Territories</title>
<title id="l4">AUSTRALIAN CRIME COMMISSION ACT 2002 - SECT 7 Establishment of the Australian Crime Commission</title>
<title id="l5">AUSTRALIAN CRIME COMMISSION ACT 2002 - SECT 7B Establishment of the Board</title>
<title id="l6">AUSTRALIAN CRIME COMMISSION ACT 2002 - SECT 7C Functions of the Board</title>
<title id="l7">AUSTRALIAN CRIME COMMISSION ACT 2002 - SECT 7D Board meetings</title>
<title id="l8">AUSTRALIAN CRIME COMMISSION ACT 2002 - SECT 7E Presiding at Board meetings</title>
<title id="l9">AUSTRALIAN CRIME COMMISSION ACT 2002 - SECT 7F Quorum at Board meetings</title>
<title id="l10">AUSTRALIAN CRIME COMMISSION ACT 2002 - SECT 7G Voting at Board meetings</title>
<title id="l11">AUSTRALIAN CRIME COMMISSION ACT 2002 - SECT 7J Resolutions outside of Board meetings</title>
<title id="l12">AUSTRALIAN CRIME COMMISSION ACT 2002 - SECT 12 Performance of functions</title>
<title id="l13">AUSTRALIAN CRIME COMMISSION ACT 2002 - SECT 16 Limitation on challenge to Board determination</title>
<title id="l14">AUSTRALIAN CRIME COMMISSION ACT 2002 - SECT 24A Examinations</title>
<title id="l15">AUSTRALIAN CRIME COMMISSION ACT 2002 - SECT 25A Conduct of examination</title>
<title id="l16">AUSTRALIAN CRIME COMMISSION ACT 2002 - SECT 26 Reimbursement of expenses</title>
<title id="l17">AUSTRALIAN CRIME COMMISSION ACT 2002 - SECT 27 Legal and financial assistance</title>
<title id="l18">AUSTRALIAN CRIME COMMISSION ACT 2002 - SECT 28 Power to summon witnesses and take evidence</title>
<title id="l19">AUSTRALIAN CRIME COMMISSION ACT 2002 - SECT 29 Power to obtain documents</title>
<title id="l20">AUSTRALIAN CRIME COMMISSION ACT 2002 - SECT 29A Disclosure of summons or notice etc. may be prohibited</title>
<title id="l21">AUSTRALIAN CRIME COMMISSION ACT 2002 - SECT 29B Offences of disclosure</title>
<title id="l22">AUSTRALIAN CRIME COMMISSION ACT 2002 - SECT 30 Failure of witnesses to attend and answer questions</title>
<title id="l23">AUSTRALIAN CRIME COMMISSION ACT 2002 - SECT 31 Warrant for arrest of witness</title>
<title id="l24">AUSTRALIAN CRIME COMMISSION ACT 2002 - SECT 55A Operation of State laws--investigation of offences against State laws</title>
<title id="l25">AUSTRALIAN CRIME COMMISSION ACT 2002 - SECT 59A Delegation</title>
<title id="l26">AUSTRALIAN FEDERAL POLICE ACT 1979 </title>
<title id="l27">AUSTRALIAN FEDERAL POLICE ACT 1979 - SECT 19 Absence etc. of Commissioner or Deputy Commissioner</title>
<title id="l28">AUSTRALIAN FEDERAL POLICE ACT 1979 - SECT 26 Continuous employment</title>
<title id="l29">AUSTRALIAN FEDERAL POLICE ACT 1979 - SECT 27 Remuneration and other conditions</title>
<title id="l30">AUSTRALIAN FEDERAL POLICE ACT 1979 - SECT 28 Termination of employment by Commissioner</title>
<title id="l31">AUSTRALIAN FEDERAL POLICE ACT 1979 - SECT 30 Resignation</title>
<title id="l32">AUSTRALIAN FEDERAL POLICE ACT 1979 - SECT 31 Retirement upon reaching minimum retiring age</title>
<title id="l33">ACTS INTERPRETATION ACT 1901 </title>
<title id="l34">ACTS INTERPRETATION ACT 1901 - SECT 7 Effect of repeal of Act</title>
<title id="l35">ACTS INTERPRETATION ACT 1901 - SECT 13 Headings, schedules, marginal notes, footnotes and endnotes</title>
<title id="l36">ACTS INTERPRETATION ACT 1901 - SECT 16 References to the Sovereign</title>
<title id="l37">ACTS INTERPRETATION ACT 1901 - SECT 20 Mention of an officer in general terms</title>
<title id="l38">ACTS INTERPRETATION ACT 1901 - SECT 25D Content of statements of reasons for decisions</title>
<title id="l39">ACTS INTERPRETATION ACT 1901 - SECT 28 Rules of Court</title>
<title id="l40">ACTS INTERPRETATION ACT 1901 - SECT 29 Meaning of service by post</title>
<title id="l41">ACTS INTERPRETATION ACT 1901 - SECT 33 Exercise of powers and duties</title>
<title id="l42">INTELLIGENCE SERVICES ACT 2001 </title>
<title id="l43">JUDICIARY ACT 1903 </title>
<title id="l44">JUDICIARY ACT 1903 - SECT 28 Non-appearance of some defendants</title>
<title id="l45">JUDICIARY ACT 1903 - SECT 30 Original jurisdiction conferred</title>
<title id="l46">JUDICIARY ACT 1903 - SECT 39B Original jurisdiction of Federal Court of Australia</title>
<title id="l47">PROCEEDS OF CRIME ACT 2002 </title>
<title id="l48">FEDERAL COURT RULES </title>
</legistitles>
</case>


Question:
<citphrase id="cp0.0">cited from="[2005] FCA 265">leahy petroleum</citphrase>
<citphrase id="cp0.1">cited from="[2005] FCA 265">retail pty ltd</citphrase>
<citphrase id="cp1.0">cited from="[2004] FCAFC 72">trade practices</citphrase>
<citphrase id="cp1.1">cited from="[2004] FCAFC 72">civil penalty</citphrase>
<citphrase id="cp1.2">cited from="[2004] FCAFC 72">contravention of s 10 of the petroleum retail marketing sites act 1980 (cth)</citphrase>
<citphrase id="cp1.3">cited from="[2004] FCAFC 72">parties present joint submissions on the appropriate pecuniary penalty</citphrase>
<citphrase id="cp1.4">cited from="[2004] FCAFC 72">direction under federal court of australia act 1976 (cth) asking whether the court must consider whether the proposed amount is within the permissible range and, if so, impose the "agreed" penalty</citphrase>
<citphrase id="cp1.5">cited from="[2004] FCAFC 72">powers and responsibilities of court faced with joint submission on penalty.</citphrase>
<citphrase id="cp2.0">cited from="[2003] HCA 75">rural press limited v australian competition and consumer commission  australian competition and consumer commission v rural press limited  trade practices</citphrase>
<citphrase id="cp2.1">cited from="[2003] HCA 75">exclusionary provisions</citphrase>
<citphrase id="cp2.2">cited from="[2003] HCA 75">arrangement between regional newspaper publishers providing that one would withdraw newspaper services from the prime circulation area of the other</citphrase>
<citphrase id="cp2.3">cited from="[2003] HCA 75">whether provision had purpose of preventing, restricting or limiting supply of services to, or acquisition of services from, particular persons or classes of persons</citphrase>
<citphrase id="cp2.4">cited from="[2003] HCA 75">trade practices act 1974 (cth), ss 4d, 45 (2)(a)(i), 45 (2)(b)(i).  trade practices</citphrase>
<citphrase id="cp2.5">cited from="[2003] HCA 75">where regional newspaper publisher threatened to circulate new newspaper in prime circulation area of a second regional newspaper publisher, unless second publisher ceased circulation of its own newspaper in first publisher's prime circulation area</citphrase>
<citphrase id="cp2.6">cited from="[2003] HCA 75">where second publisher subsequently ceased circulation of newspaper in first publisher's prime circulation area</citphrase>
<citphrase id="cp2.7">cited from="[2003] HCA 75">whether an "arrangement"</citphrase>
<citphrase id="cp2.8">cited from="[2003] HCA 75">whether arrangement had purpose or effect of substantially lessening competition</citphrase>
<citphrase id="cp2.9">cited from="[2003] HCA 75">trade practices act 1974 (cth), ss 45(2)(a)(ii) , 45 (2)(b)(ii).  trade practices</citphrase>
<citphrase id="cp2.10">cited from="[2003] HCA 75">accessorial liability</citphrase>
<citphrase id="cp2.11">cited from="[2003] HCA 75">whether officers of newspaper publisher were "involved in" publisher's contraventions</citphrase>
<citphrase id="cp2.12">cited from="[2003] HCA 75">whether officers participated in or assented to contraventions with actual knowledge of essential elements constituting the contraventions</citphrase>
<citphrase id="cp2.13">cited from="[2003] HCA 75">trade practices act 1974 (cth), ss 75b(1), 76 (1), 80 (1).  trade practices</citphrase>
<citphrase id="cp2.14">cited from="[2003] HCA 75">misuse of market power</citphrase>
<citphrase id="cp2.15">cited from="[2003] HCA 75">whether publisher took advantage of market power in its prime circulation area in threatening to enter prime circulation area of second publisher</citphrase>
<citphrase id="cp2.16">cited from="[2003] HCA 75">trade practices act 1974 (cth), s 46(1).  practice and procedure</citphrase>
<citphrase id="cp2.17">cited from="[2003] HCA 75">orders</citphrase>
<citphrase id="cp2.18">cited from="[2003] HCA 75">form of declarations.</citphrase>
<citphrase id="cp4.0">cited from="[2000] FCA 1885">trade practices</citphrase>
<citphrase id="cp4.1">cited from="[2000] FCA 1885">representations about opportunity to purchase motor vehicles free of goods and services tax</citphrase>
<citphrase id="cp4.2">cited from="[2000] FCA 1885">representation that no finance application would be refused</citphrase>
<citphrase id="cp4.3">cited from="[2000] FCA 1885">obscure qualification in small print concerning prior approval of purchasers to whom finance would be granted</citphrase>
<citphrase id="cp4.4">cited from="[2000] FCA 1885">whether the representations concerned "the existence, exclusion or effect of any condition, warranty, guarantee, right or remedy" [s 53(g) of the trade practices act ].  practice and procedure</citphrase>
<citphrase id="cp4.5">cited from="[2000] FCA 1885">costs</citphrase>
<citphrase id="cp4.6">cited from="[2000] FCA 1885">negotiations between applicant and respondent concerning terms of undertaking to be given by respondent to applicant and appropriate remedial steps to be taken by respondent</citphrase>
<citphrase id="cp4.7">cited from="[2000] FCA 1885">applicant fixed deadline for negotiations to be completed</citphrase>
<citphrase id="cp4.8">cited from="[2000] FCA 1885">respondent requested extensions of deadline</citphrase>
<citphrase id="cp4.9">cited from="[2000] FCA 1885">applicant granted two such extensions but matter not resolved</citphrase>
<citphrase id="cp4.10">cited from="[2000] FCA 1885">proceedings instituted</citphrase>
<citphrase id="cp4.11">cited from="[2000] FCA 1885">matter settled on basis that respondent admitted contravening s 52 and s 53(e) of the trade practices act , but not s 53(g)</citphrase>
<citphrase id="cp4.12">cited from="[2000] FCA 1885">some of the remedial steps originally sought by the applicant were not included in the terms of settlement</citphrase>
<citphrase id="cp4.13">cited from="[2000] FCA 1885">respondent consented to declarations to the effect that it had contravened s 52 and s 53(e), but contended that its conduct should not be the subject of declarations that it had contravened s 53(g), if it were found to have done so</citphrase>
<citphrase id="cp4.14">cited from="[2000] FCA 1885">whether as a matter of discretion such additional declarations should be made</citphrase>
<citphrase id="cp4.15">cited from="[2000] FCA 1885">appropriate costs order.</citphrase>
<citphrase id="cp6.0">cited from="[1996] FCA 1134">[ database search ] [ name search ] [ recent decisions ] [ noteup ] [ lawcite ] [ help ] n w frozen foods proprietary ltd v australian competition  consumer commission [1996] fca 1134 (20 december 1996)    trade practices act</citphrase>
<citphrase id="cp6.1">cited from="[1996] FCA 1134">penalties under s.76 for contraventions of part iv</citphrase>
<citphrase id="cp6.2">cited from="[1996] FCA 1134">price fixing</citphrase>
<citphrase id="cp6.3">cited from="[1996] FCA 1134">effect of agreement between a.c.c.c. and corporation on joint submissions proposing particular orders</citphrase>
<citphrase id="cp6.4">cited from="[1996] FCA 1134">desirability of settlement of such cases</citphrase>
<citphrase id="cp6.5">cited from="[1996] FCA 1134">penalty cases not criminal prosecutions</citphrase>
<citphrase id="cp6.6">cited from="[1996] FCA 1134">matters relevant to penalty</citphrase>
<citphrase id="cp6.7">cited from="[1996] FCA 1134">object of ensuring compliance with the act by deterrence</citphrase>
<citphrase id="cp6.8">cited from="[1996] FCA 1134">effect of undertaking by corporation of a compliance programme agreed with the commission</citphrase>
<citphrase id="cp6.9">cited from="[1996] FCA 1134">difficulties in comparing penalties in other cases with that proposed for the instant case</citphrase>
<citphrase id="cp6.10">cited from="[1996] FCA 1134">importance of the particular market</citphrase>
<citphrase id="cp6.11">cited from="[1996] FCA 1134">significance of identity of corporation to be penalised where it was a member of a group</citphrase>
<citphrase id="cp6.12">cited from="[1996] FCA 1134">significance of whether a corporation has previously contravened</citphrase>
<citphrase id="cp6.13">cited from="[1996] FCA 1134">inappropriateness of diminishing the credit to be given a corporation for co-operation and admission of liability by reference to any costs saving it may achieve thereby</citphrase>
<citphrase id="cp6.14">cited from="[1996] FCA 1134">reference to u.s. law conceding the u.s. federal trade commission "a special competence in formulating remedies"</citphrase>
<citphrase id="cp6.15">cited from="[1996] FCA 1134">discussion of the question for the court where penalty is the subject of an agreed joint submission.</citphrase>
<citphrase id="cp7.0">cited from="[1993] FCA 92">trade practices</citphrase>
<citphrase id="cp7.1">cited from="[1993] FCA 92">misleading or deceptive conduct</citphrase>
<citphrase id="cp7.2">cited from="[1993] FCA 92">representation as to cover provided by a professional indemnity insurance policy</citphrase>
<citphrase id="cp7.3">cited from="[1993] FCA 92">whether statement of fact implicit in statement of opinion grounded on a rational foundation by reason of superior knowledge and expertise.  damages</citphrase>
<citphrase id="cp7.4">cited from="[1993] FCA 92">claim under s.82(1) of the trade practices act alleging a contravention of s.52(1) of the act</citphrase>
<citphrase id="cp7.5">cited from="[1993] FCA 92">measure of damages.  practice and procedure</citphrase>
<citphrase id="cp7.6">cited from="[1993] FCA 92">proceedings under trade practices act</citphrase>
<citphrase id="cp7.7">cited from="[1993] FCA 92">claim for damages</citphrase>
<citphrase id="cp7.8">cited from="[1993] FCA 92">no claim for injunction</citphrase>
<citphrase id="cp7.9">cited from="[1993] FCA 92">whether declaratory relief also available.</citphrase>
<citphrase id="cp8.0">cited from="[1993] FCA 83">trade practices</citphrase>
<citphrase id="cp8.1">cited from="[1993] FCA 83">consumer protection</citphrase>
<citphrase id="cp8.2">cited from="[1993] FCA 83">advertisement dealing with the effects of environmental tobacco smoke found to be misleading and deceptive</citphrase>
<citphrase id="cp8.3">cited from="[1993] FCA 83">question of relief to which respondent (the applicant at first instance) entitled</citphrase>
<citphrase id="cp8.4">cited from="[1993] FCA 83">no claim made other than for injunctive relief</citphrase>
<citphrase id="cp8.5">cited from="[1993] FCA 83">injunctive relief granted by primary judge set aside</citphrase>
<citphrase id="cp8.6">cited from="[1993] FCA 83">whether applicant should be permitted to amend application to seek declaratory relief.  remedies</citphrase>
<citphrase id="cp8.7">cited from="[1993] FCA 83">declaratory relief</citphrase>
<citphrase id="cp8.8">cited from="[1993] FCA 83">consumer protection</citphrase>
<citphrase id="cp8.9">cited from="[1993] FCA 83">whether power to grant declaratory relief</citphrase>
<citphrase id="cp8.10">cited from="[1993] FCA 83">whether injunctive relief different from that granted by primary judge should be substituted therefor.  practice and procedure</citphrase>
<citphrase id="cp8.11">cited from="[1993] FCA 83">costs</citphrase>
<citphrase id="cp8.12">cited from="[1993] FCA 83">disposal of costs at first instance and on appeal</citphrase>
<citphrase id="cp8.13">cited from="[1993] FCA 83">whether costs should be ordered on indemnity basis.  appeal</citphrase>
<citphrase id="cp8.14">cited from="[1993] FCA 83">admission of fresh evidence</citphrase>
<citphrase id="cp8.15">cited from="[1993] FCA 83">whether respondent should be given leave to rely on fresh evidence</citphrase>
<citphrase id="cp8.16">cited from="[1993] FCA 83">finality principle</citphrase>
<citphrase id="cp8.17">cited from="[1993] FCA 83">evidence not evidence in existence at time of trial.  appeal</citphrase>
<citphrase id="cp8.18">cited from="[1993] FCA 83">statutes</citphrase>
<citphrase id="cp8.19">cited from="[1993] FCA 83">validity or construction</citphrase>
<citphrase id="cp8.20">cited from="[1993] FCA 83">whether appellant should be given leave to argue questions relating to the validity or construction of s.52 of the trade practices act 1974 upon the basis of decisions of the high court of australia in australian capital television pty. limited v. commonwealth of australia (no.2) [1992] hca 45 ; (1992) 108 alr 577 and nationwide news pty. limited v. wills [1992] hca 46 ; (1992) 108 alr 681.</citphrase>
<citphrase id="cp9.0">cited from="[1992] HCA 10">administrative law</citphrase>
<citphrase id="cp9.1">cited from="[1992] HCA 10">natural justice</citphrase>
<citphrase id="cp9.2">cited from="[1992] HCA 10">criminal justice commission</citphrase>
<citphrase id="cp9.3">cited from="[1992] HCA 10">requirement to report to parliamentary committee, speaker of legislative assembly and minister</citphrase>
<citphrase id="cp9.4">cited from="[1992] HCA 10">report on gaming machine concerns and regulations</citphrase>
<citphrase id="cp9.5">cited from="[1992] HCA 10">recommendation to exclude certain persons from gaming machine industry in state</citphrase>
<citphrase id="cp9.6">cited from="[1992] HCA 10">no opportunity given to answer matters raised in reports</citphrase>
<citphrase id="cp9.7">cited from="[1992] HCA 10">whether duty of procedural fairness</citphrase>
<citphrase id="cp9.8">cited from="[1992] HCA 10">whether right or interest adversely affected</citphrase>
<citphrase id="cp9.9">cited from="[1992] HCA 10">legitimate expectation</citphrase>
<citphrase id="cp9.10">cited from="[1992] HCA 10">mandamus</citphrase>
<citphrase id="cp9.11">cited from="[1992] HCA 10">certiorari</citphrase>
<citphrase id="cp9.12">cited from="[1992] HCA 10">declaration</citphrase>
<citphrase id="cp9.13">cited from="[1992] HCA 10">criminal justice act 1989 (q.), ss 2.1(1), 2.14, 2.15, 2.18, 3.17, 3.21(2)</citphrase>
<citphrase id="cp9.14">cited from="[1992] HCA 10">gaming machine act 1991 (q.), s. 6.16(1).</citphrase>
<citphrase id="cp10.0">cited from="[1984] FCA 363">trade practices</citphrase>
<citphrase id="cp10.1">cited from="[1984] FCA 363">resale price maintenance</citphrase>
<citphrase id="cp10.2">cited from="[1984] FCA 363">sale of petroleum by respondent to dealer</citphrase>
<citphrase id="cp10.3">cited from="[1984] FCA 363">penalty</citphrase>
<citphrase id="cp10.4">cited from="[1984] FCA 363">relevant matters</citphrase>
<citphrase id="cp10.5">cited from="[1984] FCA 363">two contraventions of act</citphrase>
<citphrase id="cp10.6">cited from="[1984] FCA 363">same officer of company involved</citphrase>
<citphrase id="cp10.7">cited from="[1984] FCA 363">both contraventions in relation to one dealer</citphrase>
<citphrase id="cp10.8">cited from="[1984] FCA 363">whether injunction appropriate</citphrase>
<citphrase id="cp10.9">cited from="[1984] FCA 363">additional penalty  trade practices act 1974 ss. 76 , 77 , 80  trade practices</citphrase>
<citphrase id="cp10.10">cited from="[1984] FCA 363">resale price maintenance</citphrase>
<citphrase id="cp10.11">cited from="[1984] FCA 363">penalty</citphrase>
<citphrase id="cp10.12">cited from="[1984] FCA 363">whether injunction should go</citphrase>
<citphrase id="cp10.13">cited from="[1984] FCA 363">trade practices act 1974 (cth), ss 76 , 77 , 80 . observations concerning matters relevant to the quantum of a penalty for engaging in resale price maintenance and concerning whether an injunction should go and the terms of any such injunction.</citphrase>
<citphrase id="cp11.0">cited from="[1981] FCA 156">money lenders ordinance 1936 (a.c.t.)</citphrase>
<citphrase id="cp11.1">cited from="[1981] FCA 156">consideration of definition of "money lender" and of phrase "to carry on business"</citphrase>
<citphrase id="cp11.2">cited from="[1981] FCA 156">whether definition of "loan" in s. 4 (1) of money lenders ordinance 1936 (a.c.t.) necessarily to be imported into definition of "business of money lending"</citphrase>
<citphrase id="cp11.3">cited from="[1981] FCA 156">discussion of extended statutory definition of "loan" including forbearance to require payment of money owing</citphrase>
<citphrase id="cp11.4">cited from="[1981] FCA 156">whether respondent carried on business of money lending.  money lenders ordinance 1936 (a.c.t.) ss. 4, 9  statutes</citphrase>
<citphrase id="cp11.5">cited from="[1981] FCA 156">interpretation</citphrase>
<citphrase id="cp11.6">cited from="[1981] FCA 156">"business of money lending"</citphrase>
<citphrase id="cp11.7">cited from="[1981] FCA 156">manufacturer and wholesaler</citphrase>
<citphrase id="cp11.8">cited from="[1981] FCA 156">not registered money lender</citphrase>
<citphrase id="cp11.9">cited from="[1981] FCA 156">"service charges" for overdue accounts</citphrase>
<citphrase id="cp11.10">cited from="[1981] FCA 156">charges exceeding twelve per cent per annum</citphrase>
<citphrase id="cp11.11">cited from="[1981] FCA 156">whether obliged to register as money lender</citphrase>
<citphrase id="cp11.12">cited from="[1981] FCA 156">whether carrying on "business of money lender"</citphrase>
<citphrase id="cp11.13">cited from="[1981] FCA 156">forbearance to require payment of money owing for goods sold</citphrase>
<citphrase id="cp11.14">cited from="[1981] FCA 156">whether extended credit is "loan"</citphrase>
<citphrase id="cp11.15">cited from="[1981] FCA 156">money lenders ordinance 1936 (a.c.t.), ss. 4, 4a, 9, 12. the appellant carried on business in two shops and purchased pharmaceutical goods from the respondent, a manufacturer and wholesale supplier of such goods. the appellant's account having become substantially overdrawn, the appellant executed bills of sale in favour of the respondent at the respondent's request. it was the respondent's policy to require payment within thirty days and to charge 1.5 per cent to 1.75 per cent per month as "service charge" on accounts sixty days or more overdue. the respondent was not registered as a money lender pursuant to s. 9 of the money lenders ordinance 1936 (a.c.t.). the appellant instituted proceedings in the supreme court of the australian capital territory seeking, inter alia, a declaration that the respondent, in the course of its alleged business as a money lender, had made loans to the appellant, which were void and illegal, and that the bills of sale were void and of no effect.  held: per curiam, dismissing the appeal</citphrase>
<citphrase id="cp11.16">cited from="[1981] FCA 156">(1) whether a person is carrying on the "business of money lending" within the meaning of that phrase in s. 4 (1) of the money lenders ordinance 1936 (a.c.t.) must be determined by reference to the ordinary and natural meaning of that expression and having regard to the circumstances of the particular case.</citphrase>
<citphrase id="cp12.0">cited from="[1972] HCA 61">mines and minerals (n.s.w.)</citphrase>
<citphrase id="cp12.1">cited from="[1972] HCA 61">exploration licence</citphrase>
<citphrase id="cp12.2">cited from="[1972] HCA 61">grant of licence "from" specified day</citphrase>
<citphrase id="cp12.3">cited from="[1972] HCA 61">when period commenced</citphrase>
<citphrase id="cp12.4">cited from="[1972] HCA 61">renewal</citphrase>
<citphrase id="cp12.5">cited from="[1972] HCA 61">application to be made not later than one month before expiry of licence or renewal</citphrase>
<citphrase id="cp12.6">cited from="[1972] HCA 61">whether clear month</citphrase>
<citphrase id="cp12.7">cited from="[1972] HCA 61">mining act, 1906 (as amended) (n.s.w.), ss. 46 (3), 83b (13).  courts</citphrase>
<citphrase id="cp12.8">cited from="[1972] HCA 61">practice</citphrase>
<citphrase id="cp12.9">cited from="[1972] HCA 61">supreme court (n.s.w.)</citphrase>
<citphrase id="cp12.10">cited from="[1972] HCA 61">equitable jurisdiction</citphrase>
<citphrase id="cp12.11">cited from="[1972] HCA 61">declaration of right</citphrase>
<citphrase id="cp12.12">cited from="[1972] HCA 61">extent of jurisdiction</citphrase>
<citphrase id="cp12.13">cited from="[1972] HCA 61">whether mining act, 1906 (n.s.w.) qualifies power to grant remedy</citphrase>
<citphrase id="cp12.14">cited from="[1972] HCA 61">equity act, 1901 (as amended) (n.s.w.), s. 10.*  statutes</citphrase>
<citphrase id="cp12.15">cited from="[1972] HCA 61">construction and interpretation</citphrase>
<citphrase id="cp12.16">cited from="[1972] HCA 61">commencement of licence "from" specified day</citphrase>
<citphrase id="cp12.17">cited from="[1972] HCA 61">when term commences</citphrase>
<citphrase id="cp12.18">cited from="[1972] HCA 61">renewal of licence</citphrase>
<citphrase id="cp12.19">cited from="[1972] HCA 61">application to be made "not later than one month before expiry" of licence or renewal</citphrase>
<citphrase id="cp12.20">cited from="[1972] HCA 61">whether clear month</citphrase>
<citphrase id="cp12.21">cited from="[1972] HCA 61">interpretation act, 1897 (n.s.w.), s. 35 (ii).</citphrase>
<citphrase id="cp13.0">citing from="[2009] FCA 954">practice and procedure</citphrase>
<citphrase id="cp13.1">citing from="[2009] FCA 954">circumstances in which it is appropriate to grant declaratory relief</citphrase>
<citphrase id="cp14.0">citing from="[2009] FCA 88">trade practices</citphrase>
<citphrase id="cp14.1">citing from="[2009] FCA 88">exclusionary provision</citphrase>
<citphrase id="cp14.2">citing from="[2009] FCA 88">whether arrangement for a proscribed purpose</citphrase>
<citphrase id="cp14.3">citing from="[2009] FCA 88">class of persons excluded</citphrase>
<citphrase id="cp14.4">citing from="[2009] FCA 88">appropriate penalty</citphrase>
<citphrase id="cp14.5">citing from="[2009] FCA 88">determination of</citphrase>
<citphrase id="cp14.6">citing from="[2009] FCA 88">factors taken into account</citphrase>
<citphrase id="cp15.0">citing from="[2008] FCA 402">trade practices</citphrase>
<citphrase id="cp15.1">citing from="[2008] FCA 402">resale price maintenance</citphrase>
<citphrase id="cp15.2">citing from="[2008] FCA 402">contraventions admitted</citphrase>
<citphrase id="cp15.3">citing from="[2008] FCA 402">proposed consent orders</citphrase>
<citphrase id="cp15.4">citing from="[2008] FCA 402">court's function in such circumstances</citphrase>
<citphrase id="cp16.0">citing from="[2007] FCA 1859">trade practices</citphrase>
<citphrase id="cp16.1">citing from="[2007] FCA 1859">resale price maintenance</citphrase>
<citphrase id="cp16.2">citing from="[2007] FCA 1859">agreed facts</citphrase>
<citphrase id="cp16.3">citing from="[2007] FCA 1859">consent orders sought</citphrase>
<citphrase id="cp16.4">citing from="[2007] FCA 1859">consideration of factors relevant to penalty</citphrase>
</citphrases>
<citances>
<sentence from="[2009] FCA 954" id="cs0">In Australian Competition  Consumer Commission v Knight [2007] FCA 1011 , Mansfield J said, in relation to the making of declarations in cases such as this:
 '[65] The Court has a wide discretion under section 21 of the Federal Court of Australia Act 1976 (Cth) to make binding declarations of right (see, for example: Trade Practices Commission v Santos Limited (1993) ATPR 41-221 ; Tobacco Institute of Australia Limited v Australian Federation of Consumer Organisations Inc (No 2) [1993] FCA 83 ; (1993) 41 FCR 89 ; RAIA Insurance Brokers Limited v FAI General Insurance Co Limited [1993] FCA 92 ; [1993] FCA 92 ; (1993) 41 FCR 164 ; Australian Competition  Consumer Commission v Target [2001] FCA 1326 ; (2001) ATPR 41-840 at [14] ...'

 </sentence>
<sentence from="[2009] FCA 88" id="cs1"/>
<sentence from="[2008] FCA 1373" id="cs2">I have referred already to the requirements of s 76(1) and to the considerations it includes amongst matters relevant for the Court to have regard to in determining an appropriate pecuniary penalty. I need not repeat them. Additionally, a considerable body of authority has enlarged upon the principles governing the imposition of pecuniary penalties. Those principles were helpfully distilled by Kenny J in Australian Competition and Consumer Commission v TEAC Australia Pty Ltd [2007] FCA 1859 at [16] . Her Honour there said:
 "The relevant principles governing the imposition of pecuniary penalties are discussed in Australian Consumer and Competition Commission v Dataline.Net.Au Pty Ltd [2007] FCAFC 146 at [60] - [75]; Trade Practices Commission v CSR Ltd (1991) ATPR 41-076 at 52,151-52, 154; NW Frozen Foods Pty Ltd v Australian Consumer and Competition Commission [1996] FCA 1134 ; (1997) 71 FCR 285 at 290-295; J McPhee  Son (Aust) Pty Ltd v Australian Consumer and Competition Commission [2000] FCA 365 ; (2000) 172 ALR 532 ; and Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72 at [51] - [58]. These authorities indicate that further relevant matters include:

 (a) the size of the contravening company;

 (b) the degree of power the company has, as evidenced by its market share and ease of entry into the market;

 (c) whether the conduct was systematic, deliberate, or covert;

 (d) the period over which the conduct occurred;

 (e) the effect on the functioning of the market and other economic effects of the conduct;

 (f) whether the contravention arose out of the conduct of senior management or at a lower level;

 (g) whether the company has a corporate culture conducive to compliance with the Act, as evidenced by educational programs and discipline, or other corrective measures in response to an acknowledged contravention; and

 (h) whether the company has shown a disposition to co-operate with the authorities responsible for the enforcement of the Act in relation to the contravention.

 See also Australian Consumer and Competition Commission v Jurlique International Pty Ltd [2007] FCA 79 at [51] ; Australian Consumer and Competition Commission v Knight [2007] FCA 1011 at [70] ; and Australian Consumer and Competition Commission v Visy Industries Holdings Pty Limited (No 3) [2007] FCA 1617 at [303] . "

 </sentence>
<sentence from="[2007] FCA 1859" id="cs3">

16 The relevant principles governing the imposition of pecuniary penalties are discussed in Australian Consumer and Competition Commission v Dataline.Net.Au Pty Ltd [2007] FCAFC 146 (" Dataline ") at [60]-[75]; Trade Practices Commission v CSR Ltd (1991) ATPR 41-076 at 52,151-52, 154; NW Frozen Foods Pty Ltd v Australian Consumer and Competition Commission [1996] FCA 1134 ; (1997) 71 FCR 285 at 290-295; J McPhee  Son (Aust) Pty Ltd v Australian Consumer and Competition Commission [2000] FCA 365 ; (2000) 172 ALR 532 ; and Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72 (" Mobil Oil ") at [51]-[58]. These authorities indicate that further relevant matters include:

 (a) the size of the contravening company;

 (b) the degree of power the company has, as evidenced by its market share and ease of entry into the market;

 (c) whether the conduct was systematic, deliberate, or covert;
 (d) the period over which the conduct occurred;

 (e) the effect on the functioning of the market and other economic effects of the conduct;
 (f) whether the contravention arose out of the conduct of senior management or at a lower level;
 (g) whether the company has a corporate culture conducive to compliance with the Act, as evidenced by educational programs and discipline, or other corrective measures in response to an acknowledged contravention; and
 (h) whether the company has shown a disposition to co-operate with the authorities responsible for the enforcement of the Act in relation to the contravention.

See also Australian Consumer and Competition Commission v Jurlique International Pty Ltd [2007] FCA 79 (" Jurlique ") at [51]; Australian Consumer and Competition Commission v Knight [2007] FCA 1011 (" Knight ") at [70]; and Australian Consumer and Competition Commission v Visy Industries Holdings Pty Limited (No 3) [2007] FCA 1617 (" Visy Industries ") at [303].</sentence>
</citances>
<legistitles>
<title id="l0">FEDERAL COURT OF AUSTRALIA ACT 1976 </title>
<title id="l1">FEDERAL COURT OF AUSTRALIA ACT 1976 - SECT 21 Declarations of right</title>
<title id="l2">FEDERAL COURT RULES </title>
<title id="l3">COMPETITION POLICY REFORM (SOUTH AUSTRALIA) ACT 1996 </title>
<title id="l4">COMPETITION POLICY REFORM (SOUTH AUSTRALIA) ACT 1996 - SECT 4 </title>
<title id="l5">COMPETITION POLICY REFORM (SOUTH AUSTRALIA) ACT 1996 - SECT 45 </title>
</legistitles>
</case>


Question:
<citphrase id="cp0.0">cited from="[1990] HCA 12">real property</citphrase>
<citphrase id="cp0.1">cited from="[1990] HCA 12">joint tenancy</citphrase>
<citphrase id="cp0.2">cited from="[1990] HCA 12">severance</citphrase>
<citphrase id="cp0.3">cited from="[1990] HCA 12">torrens system land</citphrase>
<citphrase id="cp0.4">cited from="[1990] HCA 12">memorandum of transfer from one tenant to trustee for herself executed and delivered to transferee</citphrase>
<citphrase id="cp0.5">cited from="[1990] HCA 12">certificate of title in possession of mortgagee</citphrase>
<citphrase id="cp0.6">cited from="[1990] HCA 12">death of transferor</citphrase>
<citphrase id="cp0.7">cited from="[1990] HCA 12">whether joint tenancy severed</citphrase>
<citphrase id="cp0.8">cited from="[1990] HCA 12">whether equitable interest alienated before death</citphrase>
<citphrase id="cp0.9">cited from="[1990] HCA 12">real property act 1900 (n.s.w.), s. 41</citphrase>
<citphrase id="cp0.10">cited from="[1990] HCA 12">conveyancing act 1919 (n.s.w.), ss. 24 , 96 .</citphrase>
<citphrase id="cp1.0">cited from="[1969] HCA 3">assignment</citphrase>
<citphrase id="cp1.1">cited from="[1969] HCA 3">equitable assignment</citphrase>
<citphrase id="cp1.2">cited from="[1969] HCA 3">chose in action</citphrase>
<citphrase id="cp1.3">cited from="[1969] HCA 3">gift</citphrase>
<citphrase id="cp1.4">cited from="[1969] HCA 3">non-compliance with statutory requirement for legal assignment</citphrase>
<citphrase id="cp1.5">cited from="[1969] HCA 3">purported parol assignment of debt.  gift</citphrase>
<citphrase id="cp1.6">cited from="[1969] HCA 3">imperfect gift</citphrase>
<citphrase id="cp1.7">cited from="[1969] HCA 3">chose in action</citphrase>
<citphrase id="cp1.8">cited from="[1969] HCA 3">non-compliance with statutory requirement for legal assignment</citphrase>
<citphrase id="cp1.9">cited from="[1969] HCA 3">purported parol assignment of contract debt.  contract</citphrase>
<citphrase id="cp1.10">cited from="[1969] HCA 3">novation</citphrase>
<citphrase id="cp1.11">cited from="[1969] HCA 3">direction by creditor for payment of debt to third party</citphrase>
<citphrase id="cp1.12">cited from="[1969] HCA 3">whether tripartite contract or contract for benefit of third party</citphrase>
<citphrase id="cp1.13">cited from="[1969] HCA 3">rights of third party.  interpleader</citphrase>
<citphrase id="cp1.14">cited from="[1969] HCA 3">circumstances in which proceedings available</citphrase>
<citphrase id="cp1.15">cited from="[1969] HCA 3">nature of orders which may be made.</citphrase>
<citphrase id="cp4.0">citing from="[2011] VSC 428">practice and procedure</citphrase>
<citphrase id="cp4.1">citing from="[2011] VSC 428">issue estoppel precluding relitigation of an the issue determined by an earlier proceeding on the part of the present trustee of a family trust, or any subsequent trustee</citphrase>
<citphrase id="cp4.2">citing from="[2011] VSC 428">summary dismissal of plaintiff's claim (r 23.03 supreme court (general civil procedure) rules 2005 )</citphrase>
<citphrase id="cp4.3">citing from="[2011] VSC 428">s 62 civil procedure act 2010</citphrase>
<citphrase id="cp4.4">citing from="[2011] VSC 428">proceeding vexatious and an abuse of process</citphrase>
<citphrase id="cp4.5">citing from="[2011] VSC 428">court's inherent power and r 23.01(1) supreme court (general civil procedure) rules 2005</citphrase>
<citphrase id="cp4.6">citing from="[2011] VSC 428">proceeding permanently stayed</citphrase>
<citphrase id="cp4.7">citing from="[2011] VSC 428">inherent power of a court to restrain the commencement of further proceedings which seek to relitigate matters already determined by the same court</citphrase>
<citphrase id="cp4.8">citing from="[2011] VSC 428">restraint order made.</citphrase>
<citphrase id="cp5.0">citing from="[2009] VSC 213">real property</citphrase>
<citphrase id="cp5.1">citing from="[2009] VSC 213">caveat</citphrase>
<citphrase id="cp5.2">citing from="[2009] VSC 213">removal.</citphrase>
<citphrase id="cp6.0">citing from="[2007] FCA 1968">bankruptcy</citphrase>
<citphrase id="cp6.1">citing from="[2007] FCA 1968">appeal from orders of federal magistrates court transferring beneficial title of properties to trustee in bankruptcy</citphrase>
<citphrase id="cp6.2">citing from="[2007] FCA 1968">whether appellant beneficial owner of properties trusts</citphrase>
<citphrase id="cp6.3">citing from="[2007] FCA 1968">whether document titled "declaration of trust" effective</citphrase>
<citphrase id="cp6.4">citing from="[2007] FCA 1968">whether document manifested intention to declare a trust</citphrase>
<citphrase id="cp6.5">citing from="[2007] FCA 1968">document ambiguous in its terms</citphrase>
<citphrase id="cp6.6">citing from="[2007] FCA 1968">whether parol evidence rule applicable</citphrase>
<citphrase id="cp6.7">citing from="[2007] FCA 1968">appellant's subsequent conduct inconsistent with declaration of trust practice and procedure</citphrase>
<citphrase id="cp6.8">citing from="[2007] FCA 1968">application to adduce "further evidence" pursuant to federal court act 1976 (cth) s 27</citphrase>
<citphrase id="cp6.9">citing from="[2007] FCA 1968">further evidence relevant to creation of purported "declaration of trust"</citphrase>
<citphrase id="cp6.10">citing from="[2007] FCA 1968">principles relevant to reception of further evidence</citphrase>
<citphrase id="cp6.11">citing from="[2007] FCA 1968">whether evidence could have been led below</citphrase>
<citphrase id="cp6.12">citing from="[2007] FCA 1968">whether evidence sufficiently cogent to warrant its reception</citphrase>
<citphrase id="cp6.13">citing from="[2007] FCA 1968">whether evidence likely to have produced different result</citphrase>
<citphrase id="cp7.0">citing from="[2007] FMCA 1617">bankruptcy</citphrase>
<citphrase id="cp7.1">citing from="[2007] FMCA 1617">application for possession of land</citphrase>
<citphrase id="cp7.2">citing from="[2007] FMCA 1617">bankruptcy notice under s.139zq of the bankruptcy act 1966 (cth)</citphrase>
<citphrase id="cp7.3">citing from="[2007] FMCA 1617">valuation of property interest transferred</citphrase>
<citphrase id="cp7.4">citing from="[2007] FMCA 1617">cross claim seeking to have notice set aside.</citphrase>
<citphrase id="cp8.0">citing from="[2007] FMCA 1481">bankruptcy</citphrase>
<citphrase id="cp8.1">citing from="[2007] FMCA 1481">application by trustee pursuant to ss.58 and 116 of the bankruptcy act 1966</citphrase>
<citphrase id="cp8.2">citing from="[2007] FMCA 1481">whether valid trust</citphrase>
<citphrase id="cp8.3">citing from="[2007] FMCA 1481">equitable principles</citphrase>
<citphrase id="cp8.4">citing from="[2007] FMCA 1481">relevance of evidence of bankrupt in other proceeding claiming ownership of property and no reference to trust.</citphrase>
<citphrase id="cp10.0">citing from="[2006] FMCA 1396">bankruptcy</citphrase>
<citphrase id="cp10.1">citing from="[2006] FMCA 1396">practice  procedure</citphrase>
<citphrase id="cp10.2">citing from="[2006] FMCA 1396">application to transfer proceedings to the federal court</citphrase>
<citphrase id="cp10.3">citing from="[2006] FMCA 1396">application dismissed.</citphrase>
</citphrases>
<citances>
<sentence from="[2011] VSC 428" id="cs0">[1] 21-Dec-06 The Full Court of the Federal Court set aside the orders of Weinberg J and remitted the matter for retrial before Jessup J.</sentence>
<sentence from="[2009] VSC 213" id="cs1">21 On 24 March 2005 the plaintiff commenced an application in the Federal Court (proceeding VID 235/2005) for declarations and orders that the properties were beneficially owned by the first defendant at the date of his bankruptcy, and that they had vested in the plaintiff pursuant to ss 58 and 116 of the Act. The respondents to the application were the second defendant (as first respondent) in her capacity as trustee of the Vasiliou Family Trust and the first defendant (as second respondent). 22 On 23 August 2006 Weinberg J gave judgment in favour of the plaintiff [7] . This judgment was successfully appealed against, as I refer below. 23 On 4 September 2006 the second defendant lodged a caveat no.</sentence>
<sentence from="[2007] FCA 1968" id="cs2">47 It was common ground before me that Ms Owens had the onus of establishing the existence of the trust that she asserted. The only conceivable way that she could do so, in this case, would be to have the declaration of trust not merely accepted as genuine, but also construed as manifesting the intention to declare a trust. The failure to take any steps beyond executing the document meant that no other form of trust could arise: see Marchesi v Apostoulou [2006] FCA 1122 at [13] ---[28] and the cases cited therein. </sentence>
<sentence from="[2007] FMCA 1617" id="cs3">23. Mr Johnson contends that, alternatively, the effective date of transfer of ownership of the properties was when Mrs Vale signed the statutory declaration on 11 October 1996 (first affidavit of Mr Vale, Exhibit "MGV-1", pp.21-22). Mr Johnson argues that the transfer was an imperfect gift in the traditional sense: Milroy v Lord [1862] EngR 951 ; (1862) 4 De GF  J 264 ; Corin  Anor v Patton [1990] HCA 12 ; (1990) 169 CLR 540. In circumstances such as this, where the statutory declaration had not been carried into effect by registration of the transfer signed on 23 April 1999, Mr Johnson contends that the authorities are clear that it was an imperfect gift. Therefore, the estate of Mrs Vale would vest in Mr Sutherland as trustee of her property : s.58 of the Act. Mr Johnson relied on Marchesi v Apostoulou [2006] FCA 1122 per Weinberg J where that transfer had not been registered and the trustee sought a declaration. 75. Mr Johnson argues that the statutory declaration confirms the existence of an imperfect gift within the traditional sense of Milroy v Lord and Corin  Anor v Patton . If the statutory declaration had not been subsequently carried into effect by the registration of the transfer, it would have remained an imperfect gift and the estate of Mrs Vale would have vested in Mr Sutherland as trustee of her property under the operation of s.58 of the Act: Morchesi v Apostoulou [2006] FCA 1122 per Weinberg J. In that case, the transfer had not been registered and the trustee sought a declaration.</sentence>
<sentence from="[2007] FMCA 1481" id="cs4">102. Counsel then referred the court to the decision of Weinberg J in Marchesi v Apostoulou [2006] FCA 1122 (Marchesi at first instance). It was argued that the facts in that case were analogous to the present case. In Marchesi at first instance the question was whether the bankrupt did enough to perfect the gift of the properties in equity and the facts in that case are set out in the following paragraph from the judgment of the court:

 "3. On 7 September 2006 Aitken Walker  Strachan sent a letter to Tolhurst Druce  Emmerson which letter stated, inter alia:
 "Notwithstanding the matters raised by you, it does not appear to be in issue that Ms Owens never actually executed transfers of the properties. Your clients' claim appears to hinge upon the 20 December 2000 'Declaration of Trust' (which is a misnomer) to create an equitable interest in the properties.
 We refer you to the High Court's decision in Corin v Patton [1990] HCA 12 ; (1990) 169 CLR 540 and to the recent Federal Court decision in Marchesi v Apostoulou [2006] FCA 1122 (23 August 2006). Having regard to the principles discussed in those cases, we consider that Ms Owens did not perfect a gift of properties to the Richardson Trust and, accordingly, the properties vested in our client upon Ms Owens' bankruptcy.
 Unless, within 7 days of the date of this letter, your clients withdraw any claim to the properties (including the removal of any caveats lodged against title to the properties), our client proposes to commence proceedings in the Federal Court seeking appropriate declaratory relief.</sentence>
<sentence from="[2007] FCA 254" id="cs5">3 The trial of the proceeding was conducted before Weinberg J in April 2006. His Honour held that Mr Vasiliou's attempted gift of the properties in 1987 was not complete in equity, and that he retained the beneficial interest in the properties. As a result, he made the orders which the applicant sought: Marchesi v Apostolou [2006] FCA 1122. </sentence>
<sentence from="[2006] FMCA 1396" id="cs6">In respect of the security for costs issue, Mr Skinner submits that the law on this subject is settled and the issue can be dealt with on an interlocutory basis by either Court. 24. The written submissions filed by Mr Johnson on behalf of the trustee (at paragraph 19) contend that issues similar to the present case were considered in Marchesi v Apostoulou [2006] FCA 1122 per Weinberg J (" Marchesi "). Mr Heath contends that Marchesi together with Milroy v Lord [1862] EngR 951 ; (1862) 4 De GF  J 264 (cited in Marchesi ) are both distinguishable from this case. Although Mr Heath acknowledges that Marchesi is broadly factually similar to the matter before this Court, he says that there are also material differences which are significant.</sentence>
</citances>
<legistitles>
<title id="l0">BANKRUPTCY ACT 1966 </title>
<title id="l1">BANKRUPTCY ACT 1966 - SECT 58 Vesting of property upon bankruptcy--general rule</title>
<title id="l2">FEDERAL COURT RULES 1979 </title>
<title id="l3">REAL PROPERTY ACT 1900 </title>
<title id="l4">REAL PROPERTY ACT 1900 - SECT 58 Power to sell</title>
</legistitles>
</case>