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21,382 | Case21569 | distinguished | Housing Guarantee Fund Ltd v Yusef [1991] 2 VR 17 | The second issue to which I referred, can best be considered by reference to Housing Guarantee Fund Ltd v Yusef [1991] 2 VR 17 (' HGFL v Yusef '). |
12,085 | Case12199 | cited | Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355 | I take the proper approach to the determination of this issue to be as stated by McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355 at 384. Their Honours there said: 'the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.' (footnotes omitted) 49 The two competing views as to the meaning of the words in s 24CG(3)(b)(i) are: (a) that the words should be construed literally so that, for example, where two competing groups each claims to hold the common or group rights which constitute the native title in the area, the words are capable of including the persons in both groups; or (b) that the words should not be construed literally but should be understood to refer to all persons who, according to the traditional laws and customs of the registered native title claimants, hold the common or group rights which constitute the native title in the area. 50 It is appropriate to consider whether any of the factors identified in the passage from Project Blue Sky cited above require the words of s 24CG(3)(b)(i) to be read in a way that does not correspond with their literal or grammatical meaning. The factors upon which the respondents placed reliance are the following. 51 First, as they submitted, the words 'may hold native title' in s 24CG(3)(b)(i) are not words of expansion but rather are intended to demonstrate that proof of native title is not necessary before an area agreement may be registered. I accept that the words 'may hold native title' demonstrate that proof of native title is not necessary before an area agreement may be registered. However, this does not, of itself, assist in determining which of the two competing views of the meaning of s 24CG(3)(b)(i) should be accepted. 52 Secondly, s 24CL makes it impossible for an area agreement to be registered unless all persons who were registered native title claimants at the end of the notice period, and all persons who subsequently became registered native title claimants pursuant to applications made before the end of the notice period, are parties to the agreement. The respondents argued that s 24CL discloses an intention that a person like Mr Kemp should not be able to prevent the registration of the area Agreement unless he first becomes a registered native title claimant; as Mr Kemp chose not to adopt that course, the group represented by Dr Davis-Hurst was free to obtain registration of the agreement without his being a party to it and without obtaining his authority to make it. 55 What then are the factors which favour the first of the two competing views as to the meaning of the words 'all persons who hold or may hold native title in relation to land or waters in the area covered by the agreement' in s 24CG(3)(b)(i)? As the passage from Project Blue Sky cited above indicates, the strongest argument in favour of the first of the competing views is the literal meaning of the words. The words do not readily admit of limitation. No real difficulty would have attended drafting the passage in more limited terms. 56 Additionally, comparable words, namely 'any person claiming to hold native title in relation to land or waters in the area covered by the agreement' , are used in s 24CH(2)(d)(ii) of the Act with an apparently expansive meaning. In the context of s 24CH(2)(d)(ii) the comparable words must, I think, be intended to include any person who advances a claim in opposition to the claim to native title recognised by the agreement. The paragraph is intended to place such a person on notice that, in effect, the agreement might be registered, irrespective of his or her views as to its contents, unless he or she formally asserts a claim to native title. (see [53] above) 57 Finally, a determination that the words of s 24CG(3)(b)(i) are not to be given their literal meaning could result in interference with, if not loss of, a person's native title rights in respect of the area covered by the agreement. While details of an agreement are entered on the Register of Indigenous Land Use Agreements, the agreement has effect as if all persons holding native title in relation to any of the land or waters in the area who are not already parties to the agreement were bound by the agreement in the same way as the native title group (s 24EA). As a consequence a person who has a prima facie claim to hold native title but who is not a party to the agreement would be bound by any consents thereby given to the doing of future acts or classes of future acts (s 24CB(a) and (aa)). Indeed, it appears that the person could be bound by a surrender of native title rights and interests in the area to the Commonwealth, a State or a Territory and the consequent extinguishment of those rights and interests (s 24CB(e) and s 24EB(1)(d) and (3)). 61 Ultimately I am not persuaded that any of the factors identified in the passage from Project Blue Sky cited in [48] above requires the words of s 24CG(3)(b)(i) to be read in a way that does not correspond to their literal meaning. I decline to so read them. 62 For the above reasons, I conclude that the Registrar erred in concluding that the requirements of s 24CG(3)(b) had been met in the present case. I further conclude that it would not be appropriate to refrain from setting aside her decision on the basis that the error was not material because it was unnecessary for Mr Kemp to authorise the making of the agreement. 63 The decision of the Registrar that the Agreement must be registered pursuant to s 24CL(1) of the Act will be set aside and the application for registration remitted to the Registrar to be determined according to law. I will hear the parties on the appropriate order or orders, if any, to be made as to costs. I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson. Associate: Dated: 25 July 2006 Counsel for the Applicant: D Burwood Counsel for the First Respondent: The First Respondent, who filed a submitting appearance, did not appear Counsel for the Second - Fourth Respondents: S Lloyd and S Free Solicitor for the Second - Fourth Respondents: Crown Solicitor's Office (State of New South Wales) Counsel for the Fifth and Sixth Respondents: L Clegg Solicitor for the Fifth and Sixth Respondents: Gilbert + Tobin Counsel for the Seventh Respondent: The Seventh Respondent did not appear Date of Hearing: 19 May 2006 Date of Judgment: 25 July 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/939.html |
5,160 | Case5208 | applied | Council of the City of Sydney v Goldspar Australia Pty Ltd (2006) 230 ALR 437 | It is sufficient to note that intermediate courts have repeatedly been willing to hold that such a duty exists. However, as noted earlier I was referred to only one decision where the existence of such a duty (express or implied) was held to have been breached: Pacific Brands Sport & Leisure Pty Ltd v Underworks Pty Ltd [2005] FCA 288 at [66] , a decision which Gyles J subsequently described as ' adventurous ': Council of the City of Sydney v Goldspar Australia Pty Ltd (2006) 230 ALR 437 at [166]. Two things should be noted about the decision at first instance. First, the breach of such a duty was not determinative ( Pacific Brands Sport & Leisure Pty Ltd v Underworks Pty Ltd [2005] FCA 288 at [60] ) and the decision was the subject of appeal. Finn and Sundberg JJ at [119] considered that it was unnecessary or inappropriate to deal with the issue given their conclusions on other issues and, further, went on to say (at [119]) that: "Given both the multiple assumptions required to be made if one was to consider [the subject of breach of an implied duty of good faith] and the potentially contentious nature character of it in any event, we do not consider it is appropriate or helpful to enter upon the matter at this point in this appeal." See also Emmett J at [235] [238]. 139 More recently Gyles J in Goldspar at [168] said: "The best way for a single judge to travel through this thicket is to concentrate upon the particular contractual provision in question, in the particular contract, in the particular circumstances of the case." 146 Specific conduct has also been identified by various courts as constituting ' bad faith ' or a lack of ' good faith ' including: (1) acting arbitrarily, capriciously, unreasonably or recklessly: e.g. see Viscount Radcliffe in Selkirk v Romar Investments Ltd [1963] 1 WLR 1415 at 1422-23 cited by Gyles J in Goldspar at [173]; and Pacific Brands Sport & Leisure Pty Ltd v Underworks Pty Ltd [2005] FCA 288 at [65] ; (2) acting in a manner that is oppressive or unfair in its result by, for example, seeking to prevent the performance of the contract or to withhold its benefits: Pacific Brands Sport & Leisure Pty Ltd v Underworks Pty Ltd [2005] FCA 288 at [65] - [66] ; (3) failing to have reasonable regards to the other party's interests: Overlook Management BV v Foxtel Management Pty Ltd (2002) ACR 90 143 at [67] cited by Peden E, Good Faith in the Performance of Contracts (2003) at 160. (4) failing to act 'reasonably' in general. I consider this requirement in further detail below. 177 A party, which has properly brought a contract to an end by accepting a wrongful repudiation by the other party to an executory contract, must establish that it was ready and willing to carry out the contract at the time of acceptance of the repudiation and such readiness and willingness includes capacity: Goldspar at [200] [202] and the authorities cited. As those authorities make clear the question is whether Latitude demonstrated that it was not then " disabled or incapacitated from ... performance ": Foran v Wight [1989] HCA 51 ; (1989) 168 CLR 385 at 408-409 (per Mason CJ). That issue raises two questions - what was to be performed and was the relevant party to the contract disabled or incapacitated from performing those matters? |
5,286 | Case5334 | cited | Smith v 600 Machinery Australia Pty Ltd [1996] FCA 1029 | Mansfield J indicated in Smith v 600 Machinery Australia Pty Ltd [1996] FCA 1029 , O 23 of the Federal Court Rules provides a structure which encourages the parties throughout a proceeding to offer and to consider a fair and reasonable compromise of their proceeding while also providing a party with the means of protecting its position in relation to costs against an opponent with unrealistic expectations of the proceeding's likely outcome. The Rules prescribes both the formalities for an offer to be characterised as one made for O 23 purposes and the costs consequences of unaccepted offers. Relevantly for present purposes O 23 r 11(5) provides: (5) If: (a) an offer is made by a respondent and not accepted by the applicant; and (b) the applicant obtains judgment on the claim to which the offer relates not more favourable than the terms of the offer; then, unless the Court otherwise orders: (c) the applicant is entitled to an order that the respondent pay the applicant's costs in respect of the claim incurred up to 11 am on the day after the day when the offer was made, taxed on a party and party basis; and (d) the respondent is entitled to an order that the applicant pay the respondent's costs in respect of the claim incurred after that time, taxed on an indemnity basis. |
17,129 | Case17276 | applied | Nguyen v Minister for Immigration and Citizenship [2007] FCAFC 38 | main factors relevant to the exercise of the discretion are the applicant's prospects of success on an appeal, and whether a sufficient explanation for the delay has been provided: Nguyen v Minister for Immigration and Citizenship [2007] FCAFC 38 at [20] and [27]. Explanation for delay I will deal first with the explanation that has been provided for the delay. On 6 March 2009, the date of the Magistrate's decision, the Minister's solicitors advised him that the last day to file and serve a notice of appeal was 3 April 2009. According to the solicitor handling the matter, that date was calculated by reference to s 477A of the Act. Reliance on that section was misplaced, because the section applies to applications to the Court in its original jurisdiction and not its appellate jurisdiction. The Minister acted on that advice, and within the advised appeal period, on 1 April instructed his solicitors to file a notice of appeal. That was done on 2 April. As I have said, later that day the Registry informed the Minister's solicitors that the notice was out of time. The solicitors informed the Minister of that fact, and the Minister said he would consider his position and provide instructions by 6 April. On that day the Minister decided to seek an extension of time. That application was filed on 7 April together with a supporting affidavit setting out the matters recorded in this paragraph. |
20,407 | Case20593 | cited | Vetter v Lake Macquarie CC [2001] HCA 12 ; (2001) 202 CLR 439 | In Blatch v Archer (1774) 1 Cowp 63 at 65, 98 ER 969 at 970 Lord Mansfield CJ observed, in a passage approved in Weissensteiner v The Queen [1993] HCA 65 ; (1993) 178 CLR 217 at 225 per Mason CJ, Deane and Dawson JJ and in Vetter v Lake Macquarie CC [2001] HCA 12 ; (2001) 202 CLR 439 at 454 [36] per Gleeson CJ, Gummow and Callinan JJ with whom Hayne J generally agreed at 477 [107]: 'It is certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted.' 213 I am comfortably satisfied that on the material before me, which it was in the power of the Minister to supplement, had he chosen, by revealing in evidence the redacted portions of the material before him, Senator Johnston failed to discharge the exact function he was required to discharge in accordance with law ( Vetter 202 CLR at 454 [36]). In those circumstances, it would be wrong to sever portions of the instrument based on mere speculation that, despite the errors I have found, and the absence of evidence of what he was told could be invalid in Senator Ellison's notice, the Minister addressed the rest of the amended s 16 notice correctly. He has provided no evidence to support a finding that he did. Rather, I am of opinion that by reason of the jurisdictional and other errors in his failure to address those parts of the amended s 16 notice which I have found to be invalid, and on the evidence before me, Senator Johnston did not form the opinions required by s 16(2)(a)(ii) in respect of any paragraph in the notice. 214 For the reasons that I have given, I am of opinion that Mr Tervonen's challenges have succeeded in substance. In summary, I have formed the preliminary view that, subject to hearing the parties, I should make orders to the effect of: (a) declaring each s 16 notice invalid; (b) quashing each s 16 notice; (c) directing the Minister to issue a notice in statutory form pursuant to s 17(1)(b) of the Act directing a magistrate to order the release of Mr Tervonen from custody; (d) requiring the Minister to pay Mr Tervonen's costs. 215 The parties asked that I provide them with my reasons and an opportunity to address the precise form of relief. I will therefore order that the proceedings be stood over for argument on the appropriate relief to give effect to these reasons. I certify that the preceding two hundred and fifteen (215) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate: Dated: 6 November 2007 Counsel for the Applicant: DPM Ash (pro bono pursuant to O 80 of the Federal Court Rules) Counsel for the Respondent: KC Morgan Solicitor for the Respondent: Blake Dawson Waldron Date of Hearing: 23, 24 July 2007 Date of Judgment: 6 November 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1684.html |
720 | Case730 | referred to | Ruddock v Vadarlis [2001] FCA 1865 ; (2001) 115 FCR 229 | The power of the Court to make an order for costs derives from s 43 of the Federal Court of Australia Act 1976 (Cth). Costs ordinarily follow the event and are awarded on a party-party basis, unless there are particular or special circumstances which warrant the Court departing from this practice and making some other order: see Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225 (" Colgate-Palmolive ") at 232-233 per Sheppard J and Ruddock v Vadarlis [2001] FCA 1865 ; (2001) 115 FCR 229 at 234 per Black CJ and French J. Since Ms Wu was in substance successful, she was and remains entitled to an order for costs. She continues to submit that an indemnity costs order is appropriate. |
4,706 | Case4753 | applied | Conway v Rimmer [1968] UKHL 2 ; [1968] AC 910 | of public interest immunity require the Court to decide whether the administration of justice will be impaired or perhaps even frustrated by the withholding of relevant evidence in favour of a greater public interest, namely, that harm shall not be done to the nation or the Public Service by the disclosure of the material in contest ( Conway v Rimmer [1968] UKHL 2 ; [1968] AC 910 at 940; Rogers v Home Department State Secretary [1973] AC 388 at 400; 406 407; Sankey v Whitlam 142 CLR at 38 39; 60; and 94; Alister v The Queen 154 CLR 404 at 412; and 434; and Commonwealth v Northern Land Council [1993] HCA 24 ; (1993) 176 CLR 604 at 616 617). |
4,229 | Case4273 | cited | C7 Pty Ltd v Foxtel Management Pty Ltd [2001] FCA 1864 | As to the settled principles to be applied in an application pursuant to O 15A, r 6, the principles are these: the rule is to be beneficially construed and afforded the fullest scope its language reasonably allows; the 'proper brake' upon any excesses in the application of the rule lies in the exercise of the court's discretion ; the test for determining 'reasonable cause to believe' is an objective one; 'reasonable cause to believe' strikes a relationship with whether the applicant has a right to obtain particular relief or whether the applicant may have a right to relief and thus hypothecates a remedial outcome in the proposed proceedings on the assumption the evidence makes out each integer in the applicant's cause of action; such a belief, on either footing, requires more than mere assertion, suspicion or conjecture; a mere possibility of a right to relief is insufficient; the evidence, that is, an assessment of all the evidence, must incline the mind towards acceptance of the existence of a matter or fact in controversy out of which a right to relief arises or may arise; it is no answer to an application under O 15A, r 6 to say that the proceeding is in the nature of a 'fishing expedition'; the rule contemplates that an applicant will forensically examine the field of documents the subject of the order expressly for the purpose of enabling a decision to be made whether to commence a proceeding; although the rule contemplates such an examination of the respondent's documents the subject of the order, the invasive nature of the order is predicated upon an objectively established reasonable cause to believe that the applicant has or may have a right to contended relief; although an applicant does not need to establish a prima facie case, an applicant must establish that there is a reasonable cause to believe that each element of the potential cause of action is made out; although the threshold test may be set at quite a low level, the evidence must establish facts crystallising all the elements of a cause of action grounding the possible grant of the contended relief (see: St. George Bank Ltd v Rabo Australia Ltd (2004) 211 ALR 147 per Hely J [25] [29]; Hooper & Ors v Kirella Pty Ltd [1999] FCA 1584 ; (1999) 96 FCR 1 at pp 11 and 12 per Wilcox, Sackville and Katz JJ [35] [40]; Glencore International AG v Selwyn Mines Ltd (2006) 223 ALR 238 at pp 240 and 241 [8] [16] per Lindgren J; C7 Pty Ltd v Foxtel Management Pty Ltd [2001] FCA 1864 at [12] per Gyles J). |
17,116 | Case17263 | referred to | Georgiou v Old England Hotel Pty Ltd [2006] FCA 705 | In assessing a compromise under s 33V of the Act, the Court's task is an onerous one particularly in circumstances such as the present where the application is unoppossed: see Lopez v Star World Enterprises Pty Ltd (in liq) (1999) ATPR 41-678 at [16]. The Court is required: (1) to assess whether the proposed settlement or compromise is fair and reasonable and adequate having regard to the claims made on behalf of the group members who will be bound by the settlement: see Williams v FAI Home Security Pty Ltd (No 4) (2000) 180 ALR 459 at [19]; and (2) " to be satisfied that any settlement or discontinuance of representative proceedings has been undertaken in the interests of the group members as a whole, and not just in the interests of the applicant and the respondent ": Australian Competition and Consumer Commission v Chats House Investments Pty Ltd (1996) 71 FCR 250 at 258; Lopez v Star World Enterprises Pty Ltd [1999] ATPR 41-678 at [15] and Darwalla Milling Co Pty Ltd v F Hoffman-La Roche Ltd (No 2) (2007) ATPR 42-134 at [30] and [31]. See also Neil v P & O Cruises Australia Pty Ltd (formerly P & O Holidays Ltd) [2002] FCA 1325 (Weinberg J) at [6] [7]; Jarrama Pty Ltd v Caltex Australia Petroleum Pty Ltd [2004] FCA 1114 (Crennan J) at [10]; Courtney v Medtel Pty Ltd (No 5) (2004) 212 ALR 311 (Sackville J) at [37] [42]) and Georgiou v Old England Hotel Pty Ltd [2006] FCA 705 at [18] (Young J). |
12,184 | Case12298 | discussed | St Leonards Property Pty Ltd v Ambridge Investments Pty Ltd (admins apptd) [2004] NSWSC 851 ; (2004) 50 ACSR 443 | St Leonards Property Pty Ltd v Ambridge Investments Pty Ltd (admins apptd) [2004] NSWSC 851 ; (2004) 50 ACSR 443 , Barrett J made an order bringing the administration of a company to an end. The improper purpose of the director and appointor in that case was to manipulate the "relation-back day" to his benefit. I should say at this point that counsel for Mr Foti did not seek to argue that Mr Salisbury's purpose was one involving the manipulation of the relation-back day. Mr Foti claims that Mr Salisbury had two improper purposes in appointing the administrators. As I have said, he acknowledges that, if one is made out, it must be the predominant purpose, and, if both are made out, then they must be the predominant purposes. First, it is alleged by Mr Foti that Mr Salisbury's purpose in appointing the administrators was to gain control of the company. He submitted that Mr Salisbury seeks to gain control by the share issue which forms part of Mr Salisbury's proposal for a deed of company arrangement. He pointed to the fact that if the share issue proceeds, Mr Salisbury will hold 242,002 of the 242,004 shares forming the issued share capital of the company. I asked counsel for Mr Foti to identify the benefit which would enure to Mr Salisbury if he put himself in this position. He said that Mr Salisbury would then be in a position to take the lion's share of any residual equity in the two apartments. |
6,872 | Case6937 | cited | Angelides v James Stedman Hendersons Sweets Ltd [1927] HCA 34 ; (1927) 40 CLR 43 | In this area of the law the courts constantly endeavour to keep pace with the progress of trade by adapting fundamental doctrines to advancing methods and changing circumstances: Angelides v James Stedman Hendersons Sweets Ltd [1927] HCA 34 ; (1927) 40 CLR 43 at 59-60 per Isaacs ACJ; ConAgra Inc v McCain Foods (Aust) Pty Ltd [1992] FCA 159 ; (1992) 33 FCR 302 at 356 per Gummow J; Campomar 202 CLR at 88 [109]. 56 For over 150 years it has been the law that "nobody has any right to represent his goods as the goods of somebody else" per Turner LJ in Burgess v Burgess (1853) 22 LJ Ch 675 ; 3 De GM&G 896 at 904; [43] ER 351 at 354: AG Spalding & Bros v AW Gamage Ltd (1915) 84 LJ Ch 449 per Lord Parker of Waddington (with whom Viscount Haldane LC, Lord Atkinson and Lord Sumner concurred): Angelides 40 CLR at 81 per Rich and Starke JJ. |
17,166 | Case17314 | cited | Walker v Citigroup Global Markets Australia Pty Ltd [2006] FCAFC 101 | Boston argued that GE Capital had to take the allegations in the statement of claim at their highest in an argument of the present kind. It pointed to the decision of the Full Court in Walker v Citigroup Global Markets Australia Pty Ltd [2006] FCAFC 101 at [77] which held that where there were inconsistent terms within the same contract, some being standard form terms while others were specially framed with the individual circumstances in mind, it will normally be appropriate to give greater effect to the specially negotiated terms. Here, new Boston had alleged that the promise for 25% or 282 field calls was contractual, and that its claim was clearly articulated. I am not sure that I could accept the clarity of the articulation in all respects, but the essential formulation was certainly able to be discerned in most instances. New Boston argued that s 31A could not require both parties to put on evidence in detail or to conduct a mini trial. It submitted that it was not necessary for the case to be hopeless or bound to fail for it to have no reasonable prospect of success, but that the wording of s 31A did no more to change the previous law on the availability of summary remedies. |
10,643 | Case10747 | followed | Cameron's Unit Services Pty Ltd v Kevin R Whelpton & Associates (Australia) Pty Ltd (1986) 13 FCR 46 | Cameron's Unit Services Pty Ltd v Kevin R Whelpton & Associates (Australia) Pty Ltd (1986) 13 FCR 46 , Burchett J was faced with circumstances similar to those in Harpur in that the individual who was the only shareholder in the applicant company with a substantial interest in any proceeds of the litigation, was also an applicant. It was common ground that both he and the company were insolvent. Nonetheless, his Honour declined to order the company to provide security. His Honour referred to the dictum of Connolly J to the effect that in such circumstances the individual's worth was "not really relevant". What was relevant, his Honour said, was that the company was "not a stalking horse to enable someone else to evade personal responsibility" (at 53). Burchett J said that if the individual accepted responsibility, he or she, even though impecunious, was entitled to rely on the general rule that poverty is no bar to a litigant. |
1,328 | Case1348 | cited | Blackwood Hodge (Aust) Pty Ltd v Collector of Customs (NSW) (1980) 47 FLR 131 | The authorities are clear that: • On administrative review under the AAT Act the Tribunal is the arbiter of the facts: Repatriation Commission v Thompson (1988) 82 ALR 352 at 357. Accordingly, in exercising its jurisdiction under s 44(1) AAT Act the task of the Court is to leave to the Tribunal decisions of fact, and to interfere only when the identified error is one of law ( Thompson , Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 115 ALR 1, Phillips v Commissioner for Superannuation [2005] FCAFC 2 , Federal Commissioner of Taxation v Swift (1989) 89 ATC 5101). There is no error in law simply in making a wrong finding of fact (Brennan J in Waterford v Commonwealth [1987] HCA 25 ; (1987) 163 CLR 54 at 77, Thompson at 357). This point has been reiterated many times (see for example Pozzolanic at 9 and Phillips at [41]). • Simply disputing factual findings of the Tribunal on the weight of evidence does not raise errors of law in the absence of other circumstances. As pointed out by the Full Court in Collins v Minister for Immigration and Ethnic Affairs (1981) 36 ALR 598 at 601: A number of authorities were cited by counsel for the appellant in support of the propositions that the making of a decision against the evidence or the weight of the evidence and the making of an unreasonable decision are errors of law. We find it unnecessary to examine these authorities for the reason that, in our opinion, there is no factual basis to found these propositions. We would, however, comment that the concepts of a decision being against the evidence and of being against the weight of the evidence belong to appeals from courts of law and have particular application to jury verdicts. Even in that context, they do not involve questions of law. They certainly have no place when the appeal, or review, is of proceedings of an administrative tribunal which is not bound by the rules of evidence and which, subject to the obligation to observe the requirements of natural justice, can inform itself as it chooses: see s 33(1)(c) of the Administrative Appeals Tribunal Act 1975 . An appellant who attacks a conclusion of the Tribunal because of deficiency of proof said to amount to error of law must show, if he is to succeed, that there was no material before the Tribunal upon which the conclusion could properly be based. (see also, Blackwood Hodge (Aust) Pty Ltd v Collector of Customs (NSW) (1980) 47 FLR 131 at 144 5, Deniz v Minister for Immigration and Ethnic Affairs (1983) 51 ALR 645 at 650, Repatriation Commission v Thompson 82 ALR at 358, Swift at 5,113, McAuliffe v Comcare [2002] FCA 769 at [51] , Commissioner of Taxation v Word Investments Ltd [2006] FCA 1414 at [32] ) |
14,681 | Case14808 | considered | Deputy Commissioner of Taxation v Brown [1958] HCA 2 ; (1957-1958) 100 CLR 32 | There is also good reason not to imply any such intention. In Deputy Commissioner of Taxation v Brown [1958] HCA 2 ; (1957-1958) 100 CLR 32 , at 40-41 Dixon CJ noted, albeit as he acknowledged without at the time a judicial decision to that effect, that it was generally assumed that " under the Constitution liability for tax could not be imposed upon a subject without leaving open to him some judicial process by which he could show that he was not taxable or not taxable in the sum assessed ". As Dawson J later noted in Deputy Commissioner of Taxation v Richard Walter Pty Ltd [1995] HCA 23 ; (1994-1995) 183 CLR 168 , at 222, the general assumption to which Sir Owen Dixon referred did receive later judicial recognition: (His Honour referred to MacCormick v Federal Commissioner of Taxation [1984] HCA 20 ; (1984) 158 CLR 622 ; Deputy Commissioner of Taxation v Truhold Benefit Pty. Ltd. [1985] HCA 36 ; (1985) 158 CLR 678 at 684 ; Air Caledonie International v The Commonwealth [1988] HCA 61 ; (1988) 165 CLR 462 at 467). Section 14ZZN of the TAA therefore serves the important constitutional end of expressly providing for recourse by the person affected to the judicial power of the Commonwealth for a challenge to an administratively assessed taxation liability. Section 15A of the Acts Interpretation Act 1901 (Cth) counsels that Acts should be read and construed subject to the Constitution and so as not to exceed Commonwealth legislative power. Section 14ZZN provides for a fixed time limit within which to engage this constitutionally necessary right of challenge. In the face of language that did not expressly forbid the practice and whose language was broad enough on its face to permit it, it would be a strong thing to discern by implication a prohibition as to joinder which would foreclose by a technicality of form such an important and necessary right. |
12,752 | Case12870 | cited | Fencott v Muller [1983] HCA 12 ; (1983) 152 CLR 570 | next matter to be considered is the claim of secondary liability of the Directors under the TPA. The principles are well established. Natural persons will be liable in damages for a contravention by a corporation if they had a "close, rather than a remote involvement in the contravention": Fencott v Muller [1983] HCA 12 ; (1983) 152 CLR 570 , 584. Moreover, the participation in the contravention requires actual, rather than constructive, knowledge of the essential matters that make up the contravention: Yorke v Lucas [1985] HCA 65 ; (1985) 158 CLR 661 , 666-670 and 677, Rural Press Ltd v ACCC [2002] FCAFC 213 ; (2002) 118 FCR 236 at [67] and Quinlivan v ACCC (2004) 160 FCR 1 at [8]-[9]. |
22,791 | Case22995 | cited | House v The King [1936] HCA 40 ; (1936) 55 CLR 499 | An appeal from a discretionary decision by a trial judge attracts special principles. In such a case, the question is not whether the judges composing the appellate court, or a judge considering an application for leave to appeal, would have taken a different course if they were in the position of the primary judge; it is whether the primary judge's discretion miscarried, by reason of some error of principle: see House v The King [1936] HCA 40 ; (1936) 55 CLR 499 at 505; Bomanite Pty Ltd v Slatex Corp Aust Pty Ltd (1991) 32 FCR 379 at 386-387; Brambles Holdings Ltd v Trade Practices Commission (1979) 28 ALR 191 at 193 and 198; and Auspine Ltd v HS Lawrence & Son Pty Ltd (unreported, Full Federal Court, von Doussa, Mansfield and Goldberg JJ, 24 July 1998) ( 'Auspine' ). |
22,901 | Case23106 | followed | Colgate-Palmolive Company v Cussons Pty Ltd [1993] FCA 536 ; (1993) 46 FCR 225 | notion that Bitech should pay Garth Living's costs on an indemnity basis is based upon Garth Living's contention that Bitech unreasonably rejected a settlement offer made by Garth Living. The relevant principles are to be found in Colgate-Palmolive Company v Cussons Pty Ltd [1993] FCA 536 ; (1993) 46 FCR 225 at 233 234; Re Wilcox; Ex parte Venture Industries Pty Ltd (No 2) (1996) 72 FCR 151 at 152 153 (per Black CJ) and at 156 158 (per Cooper and Merkel JJ); and in University of Western Australia v Gray (No 21) [2008] FCA 1056 ; (2008) 249 ALR 360 at [32] [33] (p 368). In order to justify an order for indemnity costs by reason of the rejection of a settlement offer, the claimant must show that the refusal to accept the offer was unreasonable in all the circumstances at the time when the offer was rejected. The settlement offer relied upon by Garth Living in the present case was made on 11 July 2008 in a letter from Garth Living's lawyers (Eales & Mackenzie) to DLA Phillips Fox dated that day. Omitting formal parts, that letter was in the following terms: Without Prejudice Save as to the Question of Costs Dear Sirs, Re: Garth Living Pty Ltd and Anor -ats- Bitech Engineering No. NSD 1681 of 2006 The First Respondent/Cross Claimant hereby offers to settle the proceeding inclusive of the Applicant/Cross Respondent's claim, interest and costs, on the following terms ("Offer of Settlement"): The Applicant discontinue the proceeding; The Applicant pay to the First Respondent its costs to date in defending the proceeding; The First Respondent discontinue its cross-claim; There be no order as to costs on the cross-claim. The Offer of Settlement is open for acceptance in writing until 4.00pm on Friday 25 July 2008 after which time it will expire. The Offer of Settlement is made in accordance with the principles applied in Calderbank -v Calderbank (1975) 3 All ER 333 and Cutts -v- Head [1983] EWCA Civ 8 ; (1984) 1 All ER 597 and adopted in the Supreme Court of Victoria in MT Associates Pty Ltd -v- Aqua Max Pty Ltd and Anor (No. 3) (2000) VSC 163 and on the basis of the policy considerations referred to by Hon. Justice Byrne in Mutual Community Limited -v- Lorden Pty Ltd (unreported Supreme Court of Victoria, Byrne J. 28 April 1993 at 12-13) as referred to in Stipanov -v- Mier (No. 2) (unreported Sup. Crt. Victoria, Hollingworth J. 22 November 2006); (2006) VSC 424 , at para 10. Should the Offer of Settlement not be accepted by the Applicant, the First Respondent reserves its right to produce this letter to the Court on the question of costs, and to make application to the Court for an award of indemnity costs against the Applicant for all costs of the proceeding from the date of the Offer of Settlement (including any trial). Should you require clarification in respect to any aspect of the Offer of Settlement, then please contact me. Please confirm receipt of this correspondence. |
6,648 | Case6713 | cited | Buckland v Buckland [1900] 2 Ch 534 | supports an argument that the agreement recorded in the recitals for CREC to build or "execute" the railway should be given effect and should be treated as an agreement between FMG and CREC even where the operative provisions of the framework agreement do not contain such a provision and there is nothing inconsistent with such a construction in the operative provisions: Buckland v Buckland [1900] 2 Ch 534 at 540.3; MacKenzie v Childers (1889) 43 Ch D 265 at 274.7, 275.4-276.1; Ex parte Dawes; in re Moon (1886) 17 QBD 275 , 286.8, 288.2, 289.7; Aspdin v Austin (1844) 5 QB 671 at 683. This is even more so where, as here, the framework agreements were not drawn by lawyers. They were drafted by Heyting, an engineer, who also holds a Masters of Business Administration and who had some training in contract management. In those circumstances, arguably, a distinction between recitals and operational clauses should not be rigorously applied in an attempt to determine the parties' intention, determined objectively. Expressly, the recitals proceed on the basis that there is an agreement for the relevant Chinese contractor to build the infrastructure which is sought to be recorded in the framework agreements. The recitals do not say or imply that what follows is merely an informal arrangement, or a mere agreement to negotiate. |
16,321 | Case16451 | cited | Minister for Community Services and Health v Chi Keong Thoo (1988) 78 ALR 307 | similar view of the meaning of a term such as "special circumstances" is to be found in the judgment of the Full Court in Minister for Community Services and Health v Chi Keong Thoo (1988) 78 ALR 307 at 324. |
24,399 | Case24619 | referred to | Australian Securities Commission v McLeod (1994) 54 FCR 309 | It was not open to the court to make an order for default judgment except on the bringing of a motion supported by evidence as to the merits of the application: see Australian Securities Commission v McLeod (1994) 54 FCR 309 per Drummond J; see also for example Grey v Mango Prepaid Calling Cards Pty Limited [2004] FCA 1664 per Nicholson J, and Zomba Production Music v. Roadhouse Productions (2001) 190 ALR 288 per Stone J. |
22,651 | Case22853 | cited | Australian Wool Innovation Ltd v Newkirk [2005] FCA 290 | The only other relevant authority appears to be Australian Wool Innovation Ltd v Newkirk (No 2) [2005] FCA 1307. That case involved an attempt to strike out a statement of claim in which reliance was placed on s 45DB(1) of the Trade Practices Act , among other causes of action. Hely J struck out those parts of the statement of claim based on s 45DB. The relevant passages in his Honour's judgment are found at [56]-[65] and cast light on the question of interpretation that arises in the present case. It is not clear from the reasons for judgment what trade or commerce the applicants in that case carried on. Reference to an earlier judgment in the same proceeding, Australian Wool Innovation Ltd v Newkirk [2005] FCA 290 at [1] and [3], reveals those applicants to have been a corporation claiming to represent some 30,000 Australian woolgrowers, and persons or companies who were Australian woolgrowers represented by that corporation. In Australian Wool Innovation (No 2) at [57], Hely J pointed out that about 95 per cent of the annual production of Australian wool is exported to places outside Australia. The respondents in that case were alleged to be conducting a campaign against a practice known as mulesing, a practice involving the surgical removal of folds of skin in the breech of a ewe as a measure against flystrike. At [57], his Honour described this as a campaign that could be seen as conduct designed to hinder or prevent the export of Australian wool. His Honour said: On a broad reading of s 45DB , conduct which prevents an export sale of wool is at least arguably conduct which prevents the putative vendor from engaging in trade or commerce involving the movement of goods between Australia and places outside Australia because, as a result of the frustration of the intended sale, there will be no movement of those goods overseas. 50 As his Honour pointed out at [59], the original form in which s 45DB(1) passed through the House of Representatives contained a prohibition on persons, acting in concert, from engaging in conduct where the purpose and effect or likely effect of the conduct was to prevent or substantially hinder a third person from engaging in trade or commerce between Australia and other countries, among the States and Territories or within a Territory. The final form of the provision resulted from an amendment sponsored jointly by the Government and the Australian Democrats, and moved in the Senate. The form of the amendment appears to have provoked some controversy, because a document recording arguments of the Government in favour of the amendment was incorporated into the parliamentary record (Australia, Senate, Debates , (1996) Vol S180, p 5606). That document contained the following passage, which Hely J quoted in Australian Wool Innovation (No 2) at [60]: Some concern has been expressed that the provision, as amended, still imposes a very broad prohibition on conduct that constitutes a primary or second boycott. The concern appears to be based on a view that the expression "trade or commerce involving the movement of goods between Australia and places outside Australia" covers a very broad range of activities, because a great many manufacturing and distribution operations have some connection with the export of goods. The concern is ill-founded. The intention of this amendment is that the prohibition in section 45DB will not apply in respect of the production and distribution of goods within Australia. The boycott conduct that the section is designed to prohibit is conduct that has been undertaken for a particular purpose and which has, or is likely to have, a particular effect. The purpose and effect of the conduct must be to prevent or substantially hinder a third person from engaging in a particular type of trade or commerce. That is, trade or commerce involving the movement of goods between Australia and places outside Australia. In this context, the use of the expression "trade or commerce involving the movement of goods between Australia and places outside Australia" does not mean merely that the trade or commerce affected includes the movement of goods into or out of Australia, or that the movement of goods into or out of Australia forms some part of, or is related to, the trade and commerce. Rather, it means that the trade or commerce that is affected must entail, or be rolled up with, the movement of goods between Australia and places outside Australia. 51 In addition, at [61], Hely J quoted from the speech of Senator Murray, a joint mover of the amendment motion, in the following terms: These amendments represent a signification modification of the original bill ... Instead of a general prohibition on primary boycotts affecting trade and commerce, the prohibition will extend only to trade and commerce involving the movement of goods between Australia and places outside it. This provision will pick up only the act of movement; it will not pick up any other aspect of trade and commerce. Some commentators have suggested that it will pick up any aspect of trade and commerce if some aspect of that trade and commerce were to involve the movement of goods. I wish to state categorically, as a joint mover of the motion, that this is clearly not the intention of that provision. This provision is targeted purely and solely at movement, at shipping, for example. The reason for that is that primary boycotts on the wharves affect many other people. The effect is not limited to the immediate parties involved. If the waterside workers refuse to load perishable goods, the supplying factory might be forced to suspend operations and stand down workers, resulting in innocent employers and employees being hurt. 52 At [62], Hely J expressed the view that it was clear that s 45DB(1) as enacted was intended to have a much narrower field of operation than the form originally proposed. At [63]-[64], his Honour rejected an argument that the provision was ambiguous and might, on one view, be broad enough to encompass the claim made. His Honour decided to resolve the question of construction then and there, rather than to leave it to the trial. He expressed the view that the words "involving the movement of goods" are "obviously words of limitation intended to narrow what would otherwise have been the scope of the s 45DB prohibition." It is noteworthy that his Honour appears to have regarded the issue as so clear as to warrant the striking out of the claim. 53 In the present case, counsel for the applicants objected to reliance being placed on the parliamentary materials on which Hely J relied. The objection was obviously untenable. Section 15AB of the Acts Interpretation Act 1901 (Cth) permits the use of material not forming part of an Act if that material is capable of assisting in the ascertainment of the meaning of a provision. Among the material specified in s 15AB(2) as materials that may be considered are: (e) any explanatory memorandum relating to the Bill containing the provision, or any other relevant document, that was laid before, or furnished to the members of, either House of the Parliament by a Minister before the time when the provision was enacted; ... (h) any relevant material in the Journals of the Senate, in the Votes and Proceedings of the House of Representatives or in any official record of debates in the Parliament or either House of the Parliament. 54 In a case such as the present, the history of a provision can be of great importance in construing its meaning. It is possible to see, as Hely J did, that the operation of the provision has been narrowed substantially when compared with the form in which it was first passed by the House of Representatives and transmitted to the Senate. It is significant that the amendment proposed was supported by the Government. The document incorporated into Hansard, on which Hely J relied, falls squarely within s 15AB(2)(e) and the remarks of Senator Murray, a joint mover of the amendment, fall within s 15AB(2)(h). 55 I respectfully adopt Hely J's reasoning in relation to s 45DB(1). His Honour's judgment was a considered one. To the extent to which Hely J's view is inconsistent with the views of Drummond J in F H Transport and Sackville J in Farah , Hely J's view is to be preferred. There is nothing in the reasons of Drummond J and Sackville J in those two cases to show that their Honours even considered the possibility that the words "involving the movement of goods" should be regarded as narrowing the operation of s 45DB(1), or that either of them considered the parliamentary materials. |
13,195 | Case13315 | applied | Minister for Immigration v SZFML [2006] FCAFC 152 ; (2006) 154 FCR 572 | Neither counsel was able to refer to any decision directly on point. However, in Minister for Immigration v SZFML [2006] FCAFC 152 ; (2006) 154 FCR 572 at 585-587 [54] - [64] Spender, French and Cowdroy JJ considered the operation of Div 4 of Pt 7 of the Act in the context where an applicant for review had instructed her migration agent that she wished to attend a hearing of the tribunal in response to its invitation under s 425(1) , but the agent, purportedly on her behalf informed the tribunal that she did not wish to appear. 15 Their Honours referred to the fact that the tribunal had followed a similar administrative procedure to that used here. It had combined the invitation under s 425(1) with a notification of the date, time and place of the appearance pursuant to s 425A(1) ( SZFML 154 FCR at 586 [61]). They went on to consider what they identified as the 'logical structure of ss 425 and 425A '. They held that this involved the following theoretical sequence ( SZFML 154 FCR at 586 [62]). (1) The tribunal considers whether it should decide the review in the applicant's favour on the basis of the material before it. If it so finds, it can make the decision immediately and end the review. Otherwise it has to issue an invitation unless one or other of the conditions in ss 425(2)(b) or (c) is satisfied. (2) The tribunal asks the applicant for review whether he or she consents to it deciding a review without him or her appearing before it. If that consent is given, the applicant is not entitled to appear and the tribunal can then proceed to decide the review. (3) However, if the applicant does not give that consent, the tribunal must consider whether ss 424C(1) of (2) applies to him or her, and if not, then the invitation must be issued. (4) The tribunal must give the applicant notice of the day on which, and the time and place at which he or she is scheduled to appear. A minimum time between the giving of that notice and the actual hearing is prescribed in Reg 4.35D. (5) If the applicant does not appear at the hearing, then the tribunal is authorised to make a decision on the review without any further steps to allow or enable the applicant to appear before it. (6) Notwithstanding the above, the tribunal has a discretion to reschedule an applicant's appearance before it. 16 In SZFML 154 FCR at 586-587 [63]-[64], the applicant's migration agent had notified the tribunal that the applicant for review had consented to it deciding the review without her appearing before it, in circumstances where she had not authorised the agent to do so. Their Honour's said ( SZFML 154 FCR at 587 [64]): 'No question of the application of s 426A arises. That provision only operates where an applicant has been invited to appear before the Tribunal and does not appear at the time and place at which the applicant is scheduled to appear. In this case the Tribunal proceeded on the basis of the apparent consent tendered on behalf of SZFML . It did not proceed on the basis of her non-appearance at a scheduled hearing.' 17 Thus, Spender, French and Cowdroy JJ analysed the situation as one in which the tribunal had proceeded on the basis of the apparent consent pursuant to s 425(2)(b) rather than on the basis that the applicant for review had not appeared at the hearing (see also SZFML 154 FCR at 587 [65]). Earlier their Honours had referred to Applicant NAFF 2002 v Minister for Immigration [2004] HCA 62 ; (2004) 221 CLR 1 at 10 where McHugh, Gummow, Callinan and Heydon JJ said at 10 [26]-[27]: ' [26] Although the Tribunal was obliged to provide an informal mechanism of review (s 420(1)) , and although the Tribunal was not bound by "technicalities, legal forms or rules of evidence" (s 420(2)(a)) , the Act established important requirements of a substantive kind, several of which were designed to ensure that applicants for review received procedural fairness. The duty of the Tribunal under s 414(1) to review the delegate's decision (which arose once the appellant had applied for review) continued until one of the outcomes described in s 415(2) was arrived at, for example, the affirming, the varying or the setting aside of the decision. [27] One aspect of the overall duty to review was the duty to invite the appellant to give evidence and present arguments: s 425(1). The duty to review therefore entailed a statutory duty to consider the arguments presented and in that way to afford the appellant procedural fairness. That implied that if the Tribunal thought that the arguments had been presented so inadequately that the review could not be completed until further steps had been directed and performed, it could not be peremptorily concluded by the making of a decision before that direction was complied with or withdrawn.' 18 The Minister argued that the response to the invitation to hearing form and his Honour's finding demonstrated that the appellant had consented under s 425(2)(b) to the tribunal deciding the review without him appearing before it. He pointed to what Spender, French and Cowdroy JJ had said in SZFML 154 FCR at 585 [58], namely that where one of the conditions set out in s 425(2) is satisfied, the entitlement to appear before a tribunal established under s 425(1) either did not come into existence or ceased to exist and the tribunal's duty to invite the applicant for review to appear before it was thus discharged. The appellant riposted that the structure of s 425 implied that the consent referred to in s 425(2)(b) had to antedate the issue of the invitation and that once issued the invitation could not be withdrawn. 19 I do not accept the appellant's argument. After issuing an invitation but before the date of the hearing, the tribunal could decide the review in favour of the applicant for review. If it did that, further conduct of the review would be otiose. Not only would there be no need for a hearing but there would be nothing for the applicant for review to put to the tribunal, since the decision already made by it would have granted the applicant what he or she had applied to get in the first place. A reconsideration by the tribunal after issuing an invitation to a hearing under s 425(1) resulting in a decision to grant the applicant for review a protection visa would enable the tribunal to pursue the objective in s 420(1) of providing a mechanism of review that, among other things, was quick. There would be no purpose in continuing to a hearing or suspending the notification to the applicant for review of the favourable decision until some future time simply because, the earlier review of the tribunal was that a hearing ought to take place. A saving of the tribunal's time, public expense, and, possibly, expense for the applicant would ensue from the immediate notification of a favourable decision prior to the scheduled hearing date. 21 Again, it is difficult to see any purpose in the legislative scheme to require the tribunal to go through the empty form of holding a hearing when it had been informed by the applicant for review that he or she consented to the tribunal deciding the review without him or her appearing before it, even after the invitation to attend the review had been issued. Such a consent, if given after the applicant for review has been informed that the tribunal did not consider that it should decide the review in the applicant's favour on the material before it and thus wished to invite him or her to a hearing so as to persuade it to the contrary, would be an informed consent to a decision being made against the interests of the applicant. Such a consent engages the operation of s 425(3) so that after it has been given the applicant is no longer entitled to appear before the tribunal. As Spender, French and Cowdroy JJ considered, once the applicant for review consents to the tribunal deciding the review without him or her appearing before it, the tribunal can proceed under ss 425(2)(b) and (3) to determine the application for review on the basis of the consent: SZFML 154 FCR at 587 [64]. Their Honours distinguished that mode of the tribunal proceeding from its acting on the basis of the power to decide the review under s 426A(1) following the non-appearance of an applicant. The applicant for review by rejecting an invitation to appear under s 425(1) , can waive his or her right to a hearing. That has the effect of an applicant for review consenting to the tribunal deciding the matter without him or her appearing before it. 22 For these reasons, the tribunal was entitled to proceed on the basis that the applicant had consented to it determining the review pursuant to s 425(2)(b). 23 The appellant also argued that by dint of s 430B(4) , if a decision is not made orally or the applicant is not in immigration detention (s 430B(1)) , the date of any decision of the tribunal is the date on which it is handed down. He argued that this provision had the effect of deeming the decision to have been made on a date different to that which it actually records as being the date on which it was made. The appellant argued that until a decision to which s 430B(1) applied was handed down, the tribunal could change its mind on the course or decision it had previously decided to adopt. |
8,450 | Case8524 | cited | ANZ Executors & Trustee Co Ltd v Qintex Australia Ltd (receiver and managers appointed) (1990) 8 ACLC 980 | Minister did not rely upon s 96.1 of the CATSI Act as providing the foundation for the Housing Associations incorporated under it to be enabled to enter into the proposed subleases. That may be simply because there are only three of them, and the condition precedent to the activation of each proposed sublease in clause 2.1(a)(i) referred to above would not be satisfied. It may also be because, notwithstanding its apparent effect, there is some authority to suggest its role is confined to validating corporate dealings with outsiders despite deficiencies in corporate capacity, but not to abrogating restrictions on the exercise of shareholders' or directors' powers: see eg per McPherson J (with whom Lee and McKenzie JJ agreed) in ANZ Executors & Trustee Co Ltd v Qintex Australia Ltd (receiver and managers appointed) (1990) 8 ACLC 980 at 988. There may be other reasons. It may be that such a provision does not inhibit a member of such an association from asserting that the common understanding of the members and their general intention was for the association to control the use and development of those town camps, and seeking to enforce that position. That sort of contention has been used to support the winding up of a corporation or the just and equitable ground: see Ford's Principles of Corporations Law (13 th ed, 2007, Butterworths) at [12.130] p 744 and the cases there cited. As the issue was not raised, it is not necessary to go beyond those comments. Consequently, it is necessary to consider the second of the questions I have identified above. That is, it is necessary to determine whether the particular terms of the proposed subleases mean that the agreement to enter into them is contrary to the interests of the members as a whole. The Residents as members put their contention quite brutally: for $1, the Housing Associations have given up all rights, functions and representative activities in relation to their town camps so they cannot discharge their responsibilities to their members under Item 1.3 of their Constitutions and under their Rule Books. There is "an equation of $1 for no rights for at least 40 years". |
14,883 | Case15010 | applied | Alabama, New Orleans, Texas & Pacific Junction Railway Company, In re [1891] 1 Ch 213 | brief description of the two schemes for which approval is now sought is to be found in what I said when ordering the convening of the scheme meetings: see In the Application of United Medical Protection Limited [2007] FCA 631. The duty of the court when acting under s 411(6) of the Corporations Act 2001 (Cth) has been explained more than once. Nothing is served by going over old ground. It will be sufficient to refer to two short passages from the leading case: In re Alabama, New Orleans, Texas & Pacific Junction Railway Company [1891] 1 Ch 213. First there is the passage from Lindley LJ 238-239. He said: What the Court has to do is to see, first of all, that the provisions of that statute have been complied with; and, secondly, that the majority has been acting bona fide. The Court also has to see that the minority is not being overridden by a majority having interests of its own clashing with those of the minority whom they seek to coerce. Further than that, the Court has to look at the scheme and see whether it is one as to which persons acting honestly, and viewing the scheme laid before them in the interests of those whom they represent, take a view which can be reasonably taken by business men. The Court must look at the scheme, and see whether the Act has been complied with, whether the majority are acting bona fide, and whether they are coercing the minority in order to promote interests adverse to those of the class whom they purport to represent; and then see whether the scheme is a reasonable one or whether there is any reasonable objection to it, or such an objection to it as that any reasonable man might say that he could not approve of it. The other passage is from Fry LJ who at 247 said: Then the next inquiry is Under what circumstances is the Court to sanction a resolution which has been passed approving of a compromise or arrangement? I shall not attempt to define what elements may enter into the consideration of the Court beyond this, that I do not doubt for a moment that the Court is bound to ascertain that all the conditions required by the statute have been complied with; it is bound to be satisfied that the proposition was made in good faith; and, further, it must be satisfied that the proposal was at least so far fair and reasonable, as that an intelligent and honest man, who is a member of that class, and acting alone in respect of his interest as such a member, might approve of it. What other circumstances the Court may take into consideration I will not attempt to forecast. These passages make clear that the court does not simply act on the views of members. On the other hand, if the members are acting with full knowledge and complete information and, also, are acting honestly, they are in a far better position than a judge to decide what is in their best interests. |
12,709 | Case12827 | cited | Duus v Dalvella Pty Ltd [2007] FCA 1921 | The issues framed by the Statement of Claim prior to amendment are described comprehensively in Duus v Dalvella Pty Ltd [2007] FCA 1921 ( 'Duus v Dalvella' ). That decision determined, largely unfavourably to Dalvella and Donemate, their challenge to the adequacy of particulars given by the Trustees of the Statement of Claim. Some of the arguments dealt with in that decision have been raised again in the present application although on this occasion in the context of whether the Amended Statement of Claim properly pleads a cause of action reliant upon the integers of s 121 of the Bankruptcy Act 1966 (Cth) ('the Act'). 3 By their application, the Trustees seek the following declarations and orders in reliance upon s 121 of the Act: 1. A declaration that the mortgage granted by Mr and Mrs Waters as joint tenants in the Property [property located at 46 Victoria Terrace, Caloundra, Queensland of which Mr and Mrs Waters are registered proprietors as joint tenants] in favour of Dalvella on or about 3 February 1997 is void as against the Applicants pursuant to the provisions section 121 of the [Act] ; 2. A declaration that the Contract of Sale dated 25 May 1999 entered into by Mr and Mrs Waters as vendors with Dalvella as purchaser for the sale of the Property is void as against the Applicants pursuant to [s 121 of the Act] ; 3. An order that Caveat No. 707849705 registered by Dalvella over the Property is without proper grounds and should be withdrawn by the Registrar of Titles; 4. A declaration that as at 22 September 1999, Mr Waters legally and beneficially held a one half interest in the Property and accordingly that interest formed part of his bankrupt estate and vested in the First Applicant by virtue of section 116(1) of the [Act] ; 6. Such further or other orders as the Court thinks fit. 4 For the reasons indicated at [24] of Duus v Dalvella , since the date of bankruptcy of Mr Waters and Mrs Waters is 22 September 1999 and 28 September 1999 respectively, s 121 of the Act applies in the following terms: SECTION 121 TRANSFERS TO DEFEAT CREDITORS 121(1) Transfers that are void. A transfer of property by a person who later becomes a bankrupt (the transferor ) to another person (the transferee ) is void against the trustee in the transferor's bankruptcy if: (a) the property would probably have become part of the transferor's estate or would probably have been available to creditors if the property had not been transferred; and (b) the transferor's main purpose in making the transfer was: (i) to prevent the transferred property from becoming divisible among the transferor's creditors; or (ii) to hinder or delay the process of making property available for division among the transferor's creditors. 121(2) Showing the transferor's main purpose in making a transfer . The transferor's main purpose in making the transfer is taken to be the purpose described in paragraph (1)(b) if it can reasonably be inferred from all the circumstances that, at the time of the transfer, the transferor was, or was about to become, insolvent. 121(3) Other ways of showing the transferor's main purpose in making a transfer. Subsection (2) does not limit the ways of establishing the transferor's main purpose in making a transfer. 121(4) Transfer not void if transferee acted in good faith. Despite subsection (1), a transfer of property is not void against the trustee if: (a) the consideration that the transferee gave for the transfer was at least as valuable as the market value of the property; and (b) the transferee did not know that the transferor's main purpose in making the transfer was the purpose described in paragraph (1)(b); and (c) the transferee could not reasonably have inferred that, at the time of the transfer, the transferor was, or was about to become, insolvent. 121(4A) Rebuttable presumption of insolvency. For the purposes of this section, a rebuttable presumption arises that the transferor was, or was about to become, insolvent at the time of the transfer if it is established that the transferor: (a) had not, in respect of that time, kept such books, accounts and records as are usual and proper in relation to the business carried on by the transferor and as sufficiently disclose the transferor's business transactions and financial position; or (b) having kept such books, accounts and records, has not preserved them. 121(5) Refund of consideration. The trustee must pay to the transferee an amount equal to the value of any consideration that the transferee gave for a transfer that is void against the trustee. 121(6) What is not consideration. For the purposes of subsections (4) and (5), the following have no value as consideration: (a) the fact that the transferee is related to the transferor; (b) if the transferee is the spouse or de facto spouse of the transferor the transferee making a deed in favour of the transferor; (c) the transferee's promise to marry, or to become the de facto spouse of, the transferor; (d) the transferee's love or affection for the transferor. (e) if the transferee is the spouse of the transferor the transferee granting the transferor a right to live at the transferred property, unless the grant relates to a transfer or settlement of property, or an agreement, under the Family Law Act 1975 . 121(7) Exemption of transfers or property under debt agreements. This section does not apply to a transfer of property under a debt agreement. 121(8) Protection of successors in title. This section does not affect the rights of a person who acquired property from the transferee in good faith and for at least the market value of the property. 121(9) Meaning of transfer of property and market value. For the purposes of this section: (a) transfer of property includes a payment of money; and (b) a person who does something that results in another person becoming the owner of property that did not previously exist is taken to have transferred the property to the other person; and (c) the market value of property transferred is its market value at the time of the transfer. 5 Section 121(1) of the Act prior to the Bankruptcy Legislation Amendment Act 1996 (Cth) (which introduced into the Bankruptcy Act s 121 in the terms above) addressed 'fraudulent dispositions'. It was in these terms: 121(1) Subject to this section, a disposition of property, whether made before or after the commencement of this Act, with intent to defraud creditors, not being a disposition for valuable consideration in favour of a person who acted in good faith, is if the person making the disposition subsequently becomes a bankrupt, void as against the trustee in the bankruptcy. 6 Although s 121 in its present form addresses transfers of property made for the identified 'main purpose', the Amended Statement of Claim (like the earlier Statement of Claim) of the Trustees challenges particular transactions (called the '1996 transactions') on the footing that they were part of a scheme orchestrated by Waters with an intent to defraud their creditors; constituted a disposition of property of Waters for no consideration in favour of Dalvella which did not act in good faith; and were entered into for a main purpose which is said to fall within the scope of s 121(1). In other words, there is an amalgam of the elements of the old s 121(1) and the present formulation of s 121(1). The Trustees say that they have chosen to formulate a case of fraudulent disposition because the facts support that conclusion as to those transactions and the disposition falls within the present formulation of s 121(1) having regard to the pleaded main purpose. There is, it is said, no inconsistency or failure to plead the required elements of the statutory cause of action. Dalvella and Donemate say inconsistency arises on both counts. 7 The case pleaded by the Amended Statement of Claim is this. 8 On 10 August 1999, Richard Waters and Margaret Waters appointed Mr Bevan Schafferius controlling trustee of their property under s 188 of the Act. On 9 September 1999 the creditors of Waters rejected a proposed composition. On 22 September 1999 the estate of Richard Waters was sequestrated (with the appointment of the first applicant as trustee of the estate) consequent upon a Bankruptcy Notice issued to Mr Waters on 4 March 1999 by the Official Receiver and the presentation of a Creditors Petition against him by the liquidator of Delvine Pty Ltd ('Delvine') on 20 April 1999. On 28 September 1999 the Insolvency Trustee Service of Australia ('ITSA') accepted a Debtors Petition filed by Mrs Waters and appointed the second applicant as trustee of her estate. 41 Paragraph 23.1 pleads that in the circumstances of the particulars identified at 22.2.1 to 22.2.13 (and Particular 3) a reasonable inference arises that within the field of existing and future creditors, a claim by the liquidators of Freedom Homes (appointed on 29 July 1996 by the creditors in the light of a report from the administrators of Freedom Homes that a claim could be made against Waters for an amount up to $2,647,255.00) is a claim by a creditor, a contingent or an anticipated creditor of Waters for that substantial sum. Similarly, the particulars of para 22 provide the content of the contention that the BSA was either a creditor or a contingent or anticipated creditor. It is true that the particulars of 30 March 2007 of para 22 use the term 'future creditors' to define, in part, the field of creditors Waters is said to have sought to defraud as 'then present creditors and all future creditors' and para 23.1 uses the term 'contingent creditors or anticipated creditors'. It seems to me the distinction is not a real one in the context of the pleading. As I said at [29] of Duus v Dalvella , there must be a relation between the steps taken as part of the contended scheme and an intention to defraud identified creditors. Those creditors however might be existing creditors with provable debts or future creditors or any present or future creditors ( Barton v Deputy Federal Commissioner of Taxation [1974] HCA 43 ; (1974) 131 CLR 370 at 374; PT Garuda Indonesia Ltd v Grellman (1992) 35 FCR 515 at 525-526; DM Cannane & Anor v J Cannane Pty Ltd [1998] HCA 26 ; (1998) 192 CLR 557 at 566 and 593; Ebner v Official Trustee in Bankruptcy [1999] FCA 110 ; (1999) 91 FCR 353 at 370-371). Future creditors include anticipated creditors (such as the liquidators of Freedom Homes or the BSA) or contingent creditors. |
3,699 | Case3737 | cited | Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 | The applicant concedes, "The Respondent's reasons cannot be construed as if they were as statute, or with an eye finely attuned for error." This statement adopts the thrust of the observations of the Full Court in Collector of Customs v Pozzolanic (1993) 43 FCR 280, including the mis-combination of visual and aural senses. Of these observations, the joint judgment in the High Court of Brennan CJ, Toohey, McHugh and Gummow JJ in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 said: These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. This has been made clear many times in this Court. For example, it was said by Brennan J in Attorney-General (NSW) v Quin : [(1990) [1990] HCA 21 ; 170 CLR 1 at 35-36.] The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone. |
23,366 | Case23579 | referred to | Perpetual Trustees (WA) Ltd v Equuscorp Pty Limited [1999] FCA 925 | AACo submits that the majority judgment in Telstra Corporation remains good law and relies upon Perpetual Trustees (WA) Ltd v Equuscorp Pty Limited [1999] FCA 925 at [16] and DSE Holdings Pty Limited v Intertan Inc & Anor [2003] FCA 384. |
23,013 | Case23225 | cited | VAQ v Minister for Immigration & Multicultural Affairs [2002] FCA 170 | The " making of an application within the prescribed time is an essential preliminary to the exercise of the RRT's function ": Fernando v Minister for Immigration & Multicultural Affairs [2000] FCA 324 at [31] , [2000] FCA 324 ; 97 FCR 407 at 415 per Heerey J. Justice Finkelstein at [48] referred to the " need for the expeditious determination of the validity of an administrative decision " and continued: [49] It is also important to note that when Parliament conferred upon a non-citizen the right to apply to the Tribunal for the review of an RRT-reviewable decision, it also circumscribed that right by requiring it to be exercised within a stipulated period: see s31 of the Migration Reform Act 1992 (Cth) inserting into the Migration Act s166B permitting review and s166BA limiting the time for that review. This suggests that the right to review will cease to exist after the prescribed period has elapsed: compare Maxwell v Murphy (1957) 96 CLR 261 at 269 per Dixon CJ. [50] Then there is the language of s412 itself. An application for review "must" be given to the Tribunal within the prescribed period. If one adopts, as it is sometimes necessary to do, the maxim that Parliament says what it means and means what is says, the language adopted by the legislature strongly suggests that an application given to the Tribunal after the relevant period has elapsed is invalid. [51] The consequences of a contrary construction must also be taken into account. If an application can be made to the Tribunal after the prescribed period has elapsed then it can be made at any time thereafter. That is to say, if an application made beyond the prescribed period is a valid application, it will be valid if given one day or one year after that period. This result could not have been intended. [52] The appellant seeks to avoid this problem by arguing that the Tribunal has discretion whether or not to consider a late application. The argument is without foundation. The Tribunal has the jurisdiction conferred upon it by the Migration Act . If it is given a valid application for review it must determine that application according to its merits. The Tribunal has no power to refuse to consider a valid application. I leave out of account the question whether the Tribunal has power to strike out an application which is brought in abuse of process. It is not necessary to determine, on this appeal, whether an administrative tribunal has such a power. Dowsett J agreed: [2000] FCA 324 at [55] . The decision of the Full Court has since been repeatedly followed: VAQ v Minister for Immigration & Multicultural Affairs [2002] FCA 170 at [6] per Sundberg, Marshall and Weinberg JJ; MZNAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1126 ; VOAM v Minister for Immigration & Multicultural Affairs [2003] FCA 396 at [10] per French J. |
15,314 | Case15442 | cited | Young v Commissioner of Taxation [2008] FCA 1908 | lack of compliance was not articulated with any great precision or clarity. It was said that the grounds in the amended draft notice of appeal 'are little more than a duplication of the alleged question of law'. Grounds 4(a) to 4(j) differ only from the corresponding alleged questions of law in two ways: first, the word 'whether' is omitted from the opening words so that each paragraph is no longer prefaced as a question and; second, statutory references are inserted. But as the Commissioner acknowledges in his referral to various quotations from cases such as Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd [2003] FCAFC 244 ; (2003) 133 FCR 290 at [47] (Branson J); Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 at 523 (Ryan J); Young v Commissioner of Taxation [2008] FCA 1908 at [19] (Gilmour J); Price Street Professional Centre Pty Ltd v Commissioner of Taxation [2007] FCAFC 154 ; (2007) 243 ALR 728 at [75] (Greenwood J); and Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232 ; (2003) 38 AAR 55 at [18] (Branson and Stone JJ), because the existence of a question of law is not merely a qualifying condition to ground the appeal, but must be the subject matter of the appeal itself see TNT Skypak International (Aust.) Pty Ltd v Federal Commissioner of Taxation [1988] FCA 119 ; (1988) 82 ALR 175 at 178 (Gummow J) there should be a link or symmetry between the question raised and the ground relied upon. Subject to the question raised being truly a pure question of law (see Birdseye at [18] (Branson and Stone JJ)), the applicant's articulation of the grounds in the manner assailed by the Commissioner may well provide the necessary link or symmetry. I would not exercise my discretion to refuse to extend time on the basis that the amended draft notice of appeal does not comply with 0 53 r 3(2)(d). |
14,725 | Case14852 | cited | Bellgrove v Eldridge [1954] HCA 36 ; (1954) 90 CLR 613 | The situation has some similarity to assessing damages where building work is defective. Recently, Finkelstein and Gordon JJ said that, speaking generally in cases of work done or not done, or damage caused to property in breach of contract, there are two bases for assessing damages: first, the cost of reinstatement, or secondly, the diminution of the value of the property due to the breach. They held that the correct measure is '... whatever is reasonable for the wronged party to recover': Bowen Investments Pty Ltd v Tabcorp Holdings Ltd (2008) 166 FCR 494 at 503 [29]. I examined the authorities and concluded that the principle applicable based on Bellgrove v Eldridge [1954] HCA 36 ; (1954) 90 CLR 613 was ( Bowen Investments 166 FCR at 524 [98]): '... that the building owner was entitled to recover the cost of rectification provided that the rectification proposed was both necessary, to bring about conformity with the contract, and a reasonable course to adopt. "Reasonableness", in that context, can be seen to be what the owner could require having regard to the terms of the contract and the nature of the departure from them in the performance proffered by the other party. That is, of course, a factual enquiry.' |
16,003 | Case16133 | distinguished | Griggs v Noris Group of Companies (Including SA Helicopters Pty Ltd and Captured Pty Ltd) (2006) 94 SASR 126 | The University further complained of Dr Wearne's failure to identify the basis upon which an implication of the kind which she alleges may be made. However, as I understand Dr Wearne's case, she will contend that the implied term presently pleaded in par 10 of the Statement of Claim is to be implied as a matter of law into every employment contract. She does not accept that the necessary implication depends upon the express terms of the contract and the actual intention of the parties (cf Griggs v Noris Group of Companies (Including SA Helicopters Pty Ltd and Captured Pty Ltd) (2006) 94 SASR 126). Again it would not be appropriate to foreclose argument on this important question. 24 Although par 10 of the Statement of Claim will be struck out for the reason identified in [21] above, it is appropriate that Dr Wearne be granted leave to replead the implied term. I am not satisfied that her case in this respect is clearly untenable. 25 The Statement of Claim does not plead as a material fact that the University breached the implied term in one or more specified ways and then particularise the specified breach or breaches. Rather the Statement of Claim provides a narrative of Dr Wearne's experiences as an employee of the University and her dealings with other employees of the University. The narrative concludes with par 111 of the Statement of Claim which opens as follows: 'The respondent breached the term of the contract set out in paragraph 10 above in that the following conduct of the respondent, was, separately and cumulatively, calculated or likely to damage or destroy the relationship of trust and confidence between the parties: ...' |
13,298 | Case13418 | referred to | Ricochet Pty Ltd and Others v Equity Trustees Executor and Agency Company Ltd [1993] FCA 99 ; (1993) 41 FCR 229 | Ricochet Pty Ltd and Others v Equity Trustees Executor and Agency Company Ltd [1993] FCA 99 ; (1993) 41 FCR 229 Lockhart, Gummow and French JJ rejected the submission that, in accordance with the observations of Wilson J in Gould v Vaggelas (1985) 157 CLR 215 at 236-238 the trial judge was bound to infer, in the absence of evidence to the contrary, that the appellants had been induced by the representations to enter into the lease in question. Their Honours said at 234: On the question of proof of inducement, the judgment of Wilson J in Gould v Vaggelas makes the point that a combination of factors may, if unanswered, lead to the conclusion that a person was induced by the representation of another to make the relevant decision. |
17,739 | Case17891 | cited | Lenijamar Pty Ltd and Others v AGC (Advances) Limited (1990) 27 FCR 388 | J was the docket judge and had management of the proceeding from its inception. Tamberlin J reserved his decision, having had the benefit of argument from counsel for the respondents and counsel for the applicant, although the applicant had represented herself up to that time. His Honour referred to authority and recognised that dismissal of proceedings on either basis required considerable restraint and would be ordered sparingly. As to O 35A r 3(1), his Honour applied the principles outlined by the Full Court in Lenijamar Pty Ltd and Others v AGC (Advances) Limited (1990) 27 FCR 388. His Honour concluded that the history of non-compliance by the applicant was such as to indicate an inability or unwillingness to cooperate with the Court and the other party in having the matter ready for trial within an acceptable period. His Honour took the view that the way in which the litigation had been conducted by the applicant rendered it impossible for the respondents to meaningfully address any case against them. There had been a persistent failure to identify any specific incident which had any connection to discrimination. His Honour was also satisfied that the way in which the proceeding had been conducted amounted to an abuse of process under O 20 r 2, such that the process was an instrument of injustice or unfairness to the respondents. An order for costs on a solicitor/client basis was founded upon the same findings. |
7,049 | Case7114 | cited | Ultramares Corporation v Touche (1931) 174 NE 441 | Therefore, I do not consider that KPMG's liability could be described as fitting within the concept of being "in an indeterminate amount for an indeterminate time to an indeterminate class": see Ultramares Corporation v Touche (1931) 174 NE 441 at 444 per Cardozo CJ. |
5,050 | Case5098 | considered | Tippett v Australian Postal Corporation (1998) 27 AAR 40 | Australia Post points out that the Tribunal was referred to Tippett v Australian Postal Corporation (1998) 27 AAR 40 , which inaccurately summarised the joint judgment of Evatt and Sheppard JJ in Beattie as stating that an injury will be aggravated if the experience of the injury is increased or intensified. In fact, their Honours said that ' it is enough to say that pain brought on by work activity may constitute an aggravation ' (emphasis added). Australia Post submits that this may well have influenced the Tribunal to make findings that pain and discomfort in Mr Mellor's thoracic and lumbar regions constituted temporary aggravations, notwithstanding its reservations made apparent by the qualifications indicating that the Tribunal was not persuaded that the pain in each case actually amounted to aggravations of the underlying ailments. |
4,059 | Case4100 | referred to | R v Burdett (1820) 4 B & Ald 95 | I can see no error of law (and a good deal of common sense) in the clear inference drawn by the tribunal that Mr Seymour had purported to act as a solicitor before Blanch J made his order. Mr Seymour had knowledge of the facts and he cannot complain that having failed fully and clearly to provide them to the tribunal, it drew inferences against him: cp: Blatch v Archer (1774) 1 Cowp 63 [98 ER 969]; R v Burdett (1820) 4 B & Ald 95 [106 ER 873]; Weissensteiner v The Queen [1993] HCA 65 ; (1993) 178 CLR 217 at 225 per Mason CJ, Deane and Dawson JJ, 233 per Brennan and Toohey JJ; Azzopardi v The Queen [2001] HCA 25 ; (2001) 205 CLR 50 at 74-75 [65] - [67] per Gaudron, Gummow, Kirby and Hayne JJ; see too Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 at 418E-G per Handley JA; Temora Shire Council v Stein (2004) 134 LGERA 407 at 424 [52] per Giles JA, [56] per Hodgson JA, 425 [62] per Pearlman AJA; see too Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18 ; (2000) 200 CLR 121 at 142-143 [51] per Gleeson CJ and McHugh J. |
18,634 | Case18803 | cited | Gooley v Westpac Banking Corporation (1995) 129 ALR 628 | The respondent submits further that as s 32 DD Act provides that contravention of disability standards is unlawful , public rights are created. However the fact that legislation provides that conduct is "unlawful" does not of itself mean that exclusively public rights of enforcement exist in relation to that legislation. There is an extensive body of law which provides that simply because a statute deems that certain actions are required by law, and failure to comply is unlawful even to the extent of prescribing a penalty, it does not mean that personal actions are therefore excluded (note for example comments of Atkin LJ in Phillips [1923] 2 KB 832; Groves v Lord Wimborne [1898] 2 QB 402 especially at 415-416; Britannic Merthyr Coal Company Ltd v David [1910] AC 74; Knox CJ, Isaacs, Gavan Duffy and Rich JJ in Mallinson v The Scottish Australian Investment Company Ltd [1920] HCA 51 ; (1920) 28 CLR 66 at 70-72; Potter v Ferguson [1979] 1 NSWLR 364 at 372; Toohey J in University of Newcastle v Chopra [1989] HCA 27 ; (1989) 85 ALR 321 at 343; Campbell v University of New South Wales (1992) 44 IR 56 at 68-69; Gooley v Westpac Banking Corporation (1995) 129 ALR 628 at 648; "GS" v News Ltd (1998) Aust Torts Reports 81-466 at 64,906). In all cases, notwithstanding the existence of other remedies (such as penalties), whether personal rights of action exist will depend on the construction of the statute itself. |
3,448 | Case3486 | cited | Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 | While it is permissible for evidence to be adduced in proceedings such as these (see Re Elders Australia Ltd; Super John Pty Ltd v Futuris Rural Pty Ltd (No 2) (unreported, Foster J, 24 December 1997); Munnings v Australian Government Solicitor [1993] HCA 66 ; (1994) 118 ALR 385, at 389; Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 at 109), the Court should be cautious not to preclude a party from relying on a defence that might be proved at trial merely because evidence exists which brings it into doubt: National Mutual Holdings v The Sentry Corporation (unreported, 27 September 1989); Sea Culture International v Scoles (1991) 32 FCR 275. |
12,412 | Case12527 | cited | Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 | The appellant contended that, by virtue of the way it dealt with the behaviour modification claim, the Tribunal's decision is marred by jurisdictional error: the Tribunal asked itself the wrong question, and as a result it failed to consider the appellant's claim properly: see generally Craig v South Australia [1995] HCA 58 ; (1995) 184 CLR 163; Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323; Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 ; (2003) 211 CLR 476 (' Plaintiff S157 '); and Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 ; (2004) 216 CLR 473 (' Appellant S395/2002 '). For similar reasons, the appellant contended that Phipps FM erred in law. The appellant seeks orders that the Tribunal's decision be quashed and that the Tribunal be directed to decide the appellant's application for a protection visa according to law. |
19,095 | Case19267 | referred to | Khan v Minister for Immigration and Multicultural Affairs [2000] FCA 1478 | when faced with a claim such as the present, which centres upon an allegation of long standing and insidious anti-Semitism, and which the husband contended was still prevalent in Latvia, the Tribunal was bound to consider that claim. It had to consider each incident of alleged discrimination, not merely in isolation, but also in conjunction with the others. It had to consider the "totality of the case put forward": Khan v Minister for Immigration and Multicultural Affairs [2000] FCA 1478 per Katz J (at [31]), cited with apparent approval by Merkel J in VTAO v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 81 ALD 332 (" VTAO ") (at [62]). In doing so it had also to consider each of the "integers" of the claim: Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 (at 259). An act that might seem capable of innocent explanation when viewed discretely can take on a different and more sinister connotation when viewed against a broader background. |
22,707 | Case22911 | cited | Hepples v Commissioner of Taxation [1992] HCA 3 ; (1991-1992) 173 CLR 492 | These are not the only principles of statutory construction which are at large in this case. The GST Act is a taxing statute. Giving full measure to the reminders offered in Project Blue Sky v ABA , it remains the case, in my opinion, that the subjection of a person to tax by Parliament requires clarity of language, not inexactitude or indirect references. Especially that is so where the asserted subjection of a particular person to tax is counter intuitive to what one might expect having regard to the prevailing general law position and the otherwise usual incidence of the tax in question. I conceive that the following passage from the judgment of Deane J in Hepples v Commissioner of Taxation [1992] HCA 3 ; (1991-1992) 173 CLR 492 at 510-511 is indicative of the contemporary approach to take to the construction of a taxing statute: There has been a marked, and justifiable, tendency in recent times for the courts to construe taxation provisions as being directed to the substance as well as the form of transactions to an extent which previously would have been thought to be inconsistent with statements of high authority in cases such as Partington v. The Attorney-General (1869) LR 4 HL 100, at p 122, and Inland Revenue Commissioners v. The Duke of Westminster [1936] AC 1 , at pp 20, 24-25, 28, 31. Nonetheless, at least in cases where tax avoidance is not involved and where the substance of relevant transactions is not concealed by artificialities of form, the basic 'principles of statutory construction' of taxing provisions remain those identified and explained by Rich and Dixon JJ. in their joint judgment in Anderson v. Commissioner of Taxes (Vict.) [1937] HCA 24 ; (1937) 57 CLR 233 , at p 243. It is appropriate to repeat what their Honours there said: In Brunton v. Commissioner of Stamp Duties ((1913) AC 747 , at p 760), Lord Parker of Waddington, speaking for the Privy Council, says: "The intention to impose a tax or duty, or to increase a tax or duty already imposed, must be shown by clear and unambiguous language and cannot be inferred from ambiguous words." This rule he again emphasized in Attorney-General v. Milne ([1914] AC 765 , at p 781), where he said, in the House of Lords: "The Finance Act is a taxing statute, and if the Crown claims a duty thereunder it must show that such duty is imposed by clear and unambiguous words." In Ormond Investment Co. v. Betts ([1928] AC 143 , at p 151), Lord Buckmaster, although differing from the majority of their Lordships and holding that in the particular case the Crown had satisfied the burden lying upon it, described the rule as a "cardinal principle ... a principle well known to the common law that has not been and ought not to be weakened - namely, that the imposition of a tax must be in plain terms." He added: "The subject ought not to be involved in these liabilities by an elaborate process of hair-splitting arguments." Lord Atkinson, who agreed in the decision of the House, expressed the rule as follows (at p 162): "It is well established that one is bound, in construing Revenue Acts, to give a fair and reasonable construction to their language without leaning to one side or the other, that no tax can be imposed on a subject by an Act of Parliament without words in it clearly showing an intention to lay the burden upon him, that the words of the statute must be adhered to, and that so-called equitable constructions of them are not permissible". 28 Before proceeding to a more detailed consideration of the provisions of the GST Act it is instructive to consider some aspects of the general position of liquidators. 29 When a corporation is being wound up in insolvency, the liquidator's duty is to take into his custody or under his control all of the property to which the corporation is or appears to be entitled: s 474(1) of the Corporations Act . Control of the corporation concerned is removed from the hands of its director or directors and vested in the liquidator for the purposes of the winding up of the corporation in insolvency in accordance with the provisions of the Corporations Act : s 471A(1) of the Corporations Act . |
10,993 | Case11102 | referred to | Re Minister for Immigration and Multicultural Affairs; Ex Parte Miah [2001] HCA 22 ; (2001) 206 CLR 57 | In VXDC, Heerey J was of the view that an examination of the explanatory statement of the Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth) and the second reading speech made it plain that the intention of the 2002 amendment was to reverse the effect of the decision of the High Court in Re Minister for Immigration and Multicultural Affairs; Ex Parte Miah [2001] HCA 22 ; (2001) 206 CLR 57; it was also to provide a comprehensive code for procedural fairness which excluded the common law natural justice hearing rule. |
5,658 | Case5717 | discussed | McCarthy v McIntyre [2000] FCA 1250 | The matter was then remitted to the primary judge to make factual findings. The remittal judgment was also appealed. In that appeal ( McCarthy v McIntyre [2000] FCA 1250) , Whitlam, Emmett and Hely JJ found, at [53]: "there is no basis for concluding that, if the valuation of the Tropicana Hotel had been in the order of $2,100,000, Westpac would not have advanced the same proportion of the valuation, namely, $1,071,000 rather than $1,622,000. That, of course, would have given rise to the need to borrow additional funds elsewhere. There is no evidence to support a conclusion that it would not have been possible to borrow the additional funds from another source." 169 The reasoning of their Honours is relevant to this case. It cannot be said that "but for" the Collier's assessment, Mr Allen would have sent the applicant a notice for less than the sum actually specified in the notice. It is quite possible that a higher figure may have been specified, given that Mr Allen gave evidence that he believed Mr Williams' figure was "a bit low", and actually thought that the Mulgrave premises were worth more. Mr Allen would have been well within his rights to serve a notice which specified a higher amount, if he believed that this reflected the proper rent, taking into account the relevant criteria outlined in clause 3.2.2. The applicant's case would require me to make findings about "what would have happened" but for the alleged misleading conduct in a way that would border upon pure speculation. 170 Not being able to satisfy the "but for" test would have been a serious problem for the applicant. There is, however, a further insurmountable hurdle in relation to the applicant's case in relation to causation. |
3,410 | Case3447 | cited | SZCIA v MIMA [2006] FCA 238 | In summary those submissions were that the reason for the Tribunal's decision was that the Tribunal, having read all the material and having evaluated its content and weight was unable to reach the specified mental state; that is the Tribunal was not satisfied that the appellant had a well founded fear of persecution because of subjectively perceived inadequacies in the information ( SZCIA v MIMA [2006] FCA 238 per Allsop J at [12]; SZEZI v MIMIA [2005] FCA 1195 per Allsop J at [29]). This was a finding open to the Tribunal and no error can be found in the approach of the learned Federal Magistrate. |
12,285 | Case12400 | followed | Walton v Gardiner [1992] HCA 12 ; (1993) 177 CLR 378 | The leading High Court authority in respect of abuse of process is the decision in Walton v Gardiner [1992] HCA 12 ; (1993) 177 CLR 378. In that decision Mason CJ, Deane and Dawson JJ said at 392-3: 'Gleeson CJ and Kirby P considered that the Court of Appeal has power to make an order staying proceedings if it is satisfied that the continuation of the proceedings would be "so unfairly and unjustifiably oppressive" as to constitute an abuse of process. Their Honours made plain that the court would only be so satisfied in an exceptional or extreme case. Mahoney JA adopted a similar approach, while formulating the appropriate test in slightly different words. His Honour considered that the question for the Court of Appeal was whether, in all the circumstances, the continuation of the proceedings before the Tribunal would involve unacceptable injustice or unfairness. In our view, the approach adopted by the members of the Court of Appeal was correct. The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness ... proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings.' 24 The first respondent, however, says that Raphael FM relied upon Walton v Gardiner rather than Applicants S503 . I disagree with the first respondent that Walton v Gardiner indicates that a case should be dismissed as an abuse of process where proceedings of the same nature have previously been discontinued, even where no determination on the merits has taken place. I would respectfully adopt the reasoning of Edmonds J in respect of this matter. It appears to me that the words ' disposed of ' in the passage from Walton v Gardiner cited above are intended, in all the circumstances, to mean ' dismissed '. I do not consider they necessarily decide the question in respect of cases where a notice of discontinuance is filed before a merits hearing has taken place. 27 I do not consider that every time an application is discontinued before a hearing has taken place and proceedings of the same nature are subsequently instituted, it must necessarily follow that the re-instituted proceedings are an abuse of process. The question whether an abuse of process has occurred is a matter of discretion, and it is a discretion which, in my opinion, should be cautiously exercised in circumstances where no issue estoppel arises. Whilst the High Court indicated in Walton v Gardiner that proceedings may be stayed as an abuse of process even where there is no issue estoppel if their continuance would be ' unjustifiably vexatious and oppressive ', the Court also made it clear that this should only occur in an extreme or exceptional case. 28 In my opinion, upon a plain reading of the reasons of Raphael FM, his Honour did not exercise a discretion at all. The passage from his Honour's reasons, reproduced at [14] above, suggests that his Honour considered that the law required the strike out of the application simply because a second application had been filed. I consider this proposition is incorrect. The authority relied upon by his Honour ( Applicant S503 ) was clearly distinguishable from the present case and, furthermore, an allegation of abuse of process must be considered specifically upon the facts of the particular case. His Honour may have been entitled to strike out the application after considering all of the circumstances, but it was not a foregone conclusion that the application was an abuse of process. In view of the observations of the High Court that the power should be used only in exceptional and extreme cases, I would have doubts about the appropriateness of dismissing the application at all. 29 Accordingly, in my opinion, the exercise of his Honour's discretion was affected by an error of principle. |
15,999 | Case16129 | cited | Burazin v Blacktown City Guardian Pty Ltd (1996) 142 ALR 144 | The University submitted that while an implied term of mutual trust and confidence is part of the law of the United Kingdom, there remains a question whether such a term may be implied by law in an Australian contract of employment. I accept that the law is not certain in this respect ( Heptonstall v Gaskin (No 2) (2005) 138 IR 103 at [22]-[23]). However, the implied term as pleaded (which does not involve mutual obligations) finds some support in Australian authorities ( Burazin v Blacktown City Guardian [1995] IRCA 660 Madgwick J's consideration of this issue was not disapproved by the Full Court on appeal in Burazin v Blacktown City Guardian Pty Ltd (1996) 142 ALR 144; Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186). It would not be appropriate on the present motion to foreclose argument on the important question of whether an Australian employer has the implied obligation pleaded in par 10 of the Statement of Claim. |
3,165 | Case3191 | distinguished | SZDMJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1034 | In SZDMJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1034 Gyles J held that there was a clear republication of original claims made in a declaration by the applicant for review as part of his application for review. That declaration critically examined the reasons given by the delegate for refusing his application in the course of which the there applicant for review referred several times to the claims that he had originally made. Gyles J held that there was a republication of the original claims made to the delegate in the application for review. The precise terms in which the republication was said to have taken place are not set out in his Honour's judgment. Each case will obviously depend on its own facts. In one sense applicants for review could be treated, on every occasion to be asking the Tribunal, because it is reviewing the original refusal, to review all that they had previously put to the delegate. But I am of opinion that that is not the proper construction of the general position having regard, to the terms of s 424A as construed by the High Court. |
21,406 | Case21593 | cited | Wilhelm v McKay [2005] FCA 792 | On 22 November 2004, the applicants sought leave to amend the primary application in accordance with a formulation of the decisions and conduct sought to be reviewed, reflected in a document described as Exhibit 'SWS2' to an affidavit of Mr Sharry. The applicants also sought discovery of particular documents. Those applications together with a Notice of Objection to Competency filed on behalf of Ms Jilani were heard by Cooper J on 17 December 2004. Following his Honour's untimely death, the parties agreed that the matters ought to be disposed of on the papers and Finkelstein J determined the various matters and published reasons in support of proposed orders on 15 June 2005 ( Wilhelm v McKay [2005] FCA 792). His Honour, perhaps unfortunately, in deciding the application on the papers did not have the benefit of reflection on the issues afforded by oral argument. On 23 June 2005, the following orders were entered, namely, the applicants be given leave to amend the primary application in terms of the Exhibit 'SWS2' (Order 1); the second respondent (Ms Jilani) make discovery of nominated documents (Order 2); the second respondent's objection to competency is dismissed (Order 3); the second respondent pay 85% of the applicants' costs of the motion (Order 4); and leave be granted to appeal with a stay of the earlier orders pending appeal. The second respondent caused a Notice of Appeal to be filed and on 20 December 2005, the Full Court allowed an appeal and set aside orders 1, 2 and 4 of the orders made by Finkelstein J ( Jilani v Wilhelm [2005] FCAFC 269 ; (2005 2006) [2005] FCAFC 269 ; 148 FCR 255 per Dowsett, Jacobson and Greenwood JJ). 46 The applicants contend that in formulating the now proposed amendments to the primary Application, the applicants have taken account of the observations of Finkelstein J ( Wilhelm v McKay (supra [24])) and the Full Court ( Jilani v Wilhelm (supra [24])). The Full Court in determining the appeal from the orders and judgment of Finkelstein J reached the following conclusions. 54 At [10] ( Wilhelm v McKay (supra)), Finkelstein J considered the possibility of a challenge to the 'decisions to obtain and issue the warrant' on the ground of bad faith or unfairness and after dealing with the notion that the investigation had come to an end by 7 July 2004 as a matter of inference arising out of the Deed, said this: '10. There is, I suppose, another possibility. It is that the ATO only agreed to give back the documents to achieve a settlement of the actions but it always intended to arrange for the search warrant to avoid handing over the documents. What effect this would have on the terms of settlement is not a matter that will arise on this application. But, if this is what really happened, it may be the basis of a challenge to the decisions to obtain and issue the warrant on the ground of bad faith or unfairness as suggested in In Re Preston [1985] AC 835. See also Leggo Australia Pty Ltd v Paraggio (1994) 52 FCR 542'. |
7,185 | Case7252 | cited | Cavoli v Etl [2007] FCA 1191 | was no dissent from the proposition that the Court has an implied jurisdiction to set aside a bankruptcy notice as an abuse of process: Re Sterling; Ex parte Esanda Ltd [1980] FCA 61 ; (1980) 44 FLR 125. And an abuse of process may be made out if the purpose in issuing the bankruptcy notice is to put pressure on a debtor to pay the debt rather than to invoke the Court's jurisdiction in relation to insolvency: Brunninghausen v Glavanics [1998] FCA 230. In Killoran v Duncan [1999] FCA 1574 , Gyles J thus observed: [12] Whilst there is no debate about the jurisdiction of the Court to set aside a bankruptcy notice as an abuse of process where it can be concluded that it was simply to put pressure on the debtor rather than to genuinely invoke the Court's jurisdiction, I am not satisfied that that is the position here. There is nothing to indicate that the respondent creditor does not genuinely intend to pursue the matter if there is default in complying with the notice. In my opinion, there is nothing special about abuse of process in this field, and, if a person wishes to resort to the jurisdiction of the Court for appropriate orders, then it will be an unusual case in which that will be prevented. [13] There is no evidence here of any collateral purpose or of any undue pressure being applied. It is correct, I think, that the time to judge abuse of process is the time that the bankruptcy notice is issued and that subsequent events have relatively slight relevance. They may be relevant insofar as they throw light upon circumstances which might have been appreciated and foreseen at the time of the issue of the notice. [14] If, contrary to my view, however, there were a prima facie case of abuse of process, the remedy is discretionary and, in my view, if circumstances following that time had altered significantly so that it would not be appropriate to set aside the notice, I think that the jurisdiction of the Court is wide enough to give effect to that. I have in mind here that whilst the immediate parties to the application are those with the most interest in the matter, the body of creditors generally also have an interest and I cannot be certain one way or the other about the position of solvency. It may be most unfortunate if a bankruptcy notice were set aside in circumstances where the debtor is in fact insolvent. By way of example, in Maxwell-Smith v S & E Hall Pty Ltd [2006] FCA 825 , 233 ALR 81 Jacobson J was prepared to infer that the purpose in issuing a bankruptcy notice was to put pressure on the debtor rather than to genuinely invoke the court's bankruptcy jurisdiction in circumstances where the bankruptcy notice sought payment of a debt for a small amount based on a judgment debt which was over 5 years old; where the judgment creditor was aware of the probability of solvency; and where the judgment debtor owned assets which greatly exceeded the debt. See also: Cavoli v Etl [2007] FCA 1191 at [17] per Heerey J; Slack v Bottoms English Solicitors [2002] FCA 1445 at [15] to [18] per Spender J. It is an abuse of process for a judgment creditor to pursue bankruptcy proceedings " for the purpose of stifling litigation ": Bayne v Baillieu; Bayne v Riggall [1908] HCA 39 ; (1908) 6 CLR 382 at 396 per Griffith CJ. |
19,241 | Case19413 | cited | McDermott v Richmond Sales (in liq) [2006] FCA 248 | Although references occur in the Authorities to the 'inherent jurisdiction' of the Court ( McDermott v Richmond Sales (in liq) [2006] FCA 248 , per Kenny J; Plantagenet Wines v Lyon Nathan Wine Group Australia Ltd [2006] FCA 247 , per Sciopis J) the term is an inaccurate description of the 'incidental and necessary power' exercised by a statutory court ( DJL v Central Authority [2000] HCA 17 ; (2000) 201 CLR 226 at 241[25], per Gleeson CJ, Gaudron J, McHugh, Gummow and Hayne JJ) as the term 'inherent jurisdiction' is a reference to a jurisdiction subsisting 'without the aid of any authorising provisions' ( R v Forbes ; ex parte Bevan per Menzies J, at p 7). The distinction between a jurisdiction or power derived by implication from statutory provisions and a jurisdiction drawn from the 'well of undefined powers available to the common law courts at Westminster'( Grassby v The Queen [1989] HCA 45 ; (1989) 168 CLR 1 at 16) is 'fundamental' ( DJL v Central Authority [26]). |
3,834 | Case3873 | cited | Hussain v Minister for Foreign Affairs [2008] FCAFC 128 ; (2008) 169 FCR 241 | Where confidential but prejudicial information is taken into account by a decision-maker, the Court may fashion its own procedures to determine whether the nature of the information is such as to reduce the obligation of procedural fairness to nothing: Nicopoulos v Commissioner for Corrective Services [2004] NSWSC 562 ; (2004) 148 A Crim R 74 at [100] - [104] per Smart AJ; Hussain v Minister for Foreign Affairs [2008] FCAFC 128 ; (2008) 169 FCR 241 at 275-276 [143] - [144] per Weinberg, Bennett and Edmonds JJ. However, the difficult issues which may arise in that context were not ventilated in the present proceedings. |
12,296 | Case12411 | followed | Colbeam Palmer Limited v Stock Affiliates Pty Ltd [1968] HCA 50 ; (1968) 122 CLR 25 | evidence before me proves, in my opinion, that the registered mark, GHD, has become well-known, and associated with hairstyling products of a particular good repute and quality. That being so, remarks made by Windeyer J in Colbeam Palmer Limited v Stock Affiliates Pty Ltd [1968] HCA 50 ; (1968) 122 CLR 25 are pertinent: All profits made by an infringer by selling goods of that kind under that name may in some cases be said to be attributable to his use of the mark. In cases of that sort the buyer of the goods is taken to have bought them because of the mark under which they were sold. If that mark was for him an inducement, not necessarily the sole inducing cause of his buying the goods, the infringing seller is accountable to the owner of the mark for the profit he made by the sale. Those sentiments apply equally in respect of a claim by an authorised licensee of the registered mark. There is not an exact correspondence as between the affidavits of Mr Gubecka and Mr Jakin as to the number of counterfeit irons imported. Mr Gubecka's evidence is that 175 counterfeit irons were imported. Mr Jakin's evidence is that, to the best of his recollection, in the period of his involvement in the ordering and sale of the counterfeit irons about 160 were purchased. Of the two, Mr Gubecka appears to have had the greater involvement in the activities of GHD Australia Direct. I note that it is to his affidavit that invoices from a Chinese company, Mount Rise Limited, in respect of the sale of the counterfeit irons, are exhibited. Further, on the face of those invoices, the buyer is shown as Mr Gubecka, rather than Mr Jakin. |
8,039 | Case8113 | applied | GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd [2003] FCA 50 ; (2003) 128 FCR 1 | although the present state of the law in this country is not yet settled on whether it is possible to use post-contractual conduct as an aid to construction of a written contract, the more favoured view is that it is not: see Masterton Homes, at [114]; FAI Traders Insurance Co Pty Ltd v Savoy Plaza Pty Ltd [1993] 2 VR 343. The criticisms of this view are, in the main, directed at its inflexibility particularly in relational contract settings: see eg GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd [2003] FCA 50 ; (2003) 128 FCR 1 at [351] ; see also Unidroit Principles of International Commercial Contracts: 2004 , Art 4.3. What I should emphasise at the outset is that AMC does not rely upon conduct subsequent to the execution of the Distribution Agreement, but which is inconsistent with its terms, to evidence an oral variation of the agreement: cf GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd [224]-[231]. Neither has there been any attempt to rely upon subsequent conduct for the purpose of interpreting the Distribution Agreement: see Cheshire and Fifoot's Law of Contract , [10.16] (9 th Aust ed). Distinctly, there is no allegation made that in exercising its cl 41.1.6 power Hamilton breached its duty of good faith and fair dealing to AMC or otherwise acted unconscionably: cf 67 Am Jur 2d, "Sales", §343. (a) AMC's contentions As AMC's submissions as to the inefficacy of the 13 July 2006 notice of termination turns, in the first instance, upon the construction it advances of cl 8.1, it is appropriate to deal with that provision first. The AMC case can be put shortly. It is that cl 8.1 provides the mechanism for setting the "Term" (ie the duration) of the Distribution Agreement. Unless and until either (or both) of the parties gave "the written notice of its desire to terminate" the Agreement, or "to alter its terms and conditions" (such notice to be given 4 years before the expiration of the 5 year term) "the Term in this Agreement was automatically extended for 12 months to make up the Term to 5 years". In other words, subject to the non-occurrence at the end of the first year of the term of the stipulated condition (which, if it had occurred, would have limited the term of the agreement to a further 4 years (the remaining of the initial term), the initial term was automatically extended a further year. In this sense, it allowed for a rolling 5 year term. Further, it provided expressly for four years notification of a party's "desire to terminate" the Agreement. It could not otherwise be terminated (save by later express agreement). Importantly, it could not be terminated under cl 41.1.6. I have earlier indicated that AMC has not pleaded that the Distribution Agreement was amended after its execution so as to vary cl 8.2. I need not enter upon the matter of variation or of the possible significance of the agreement apparently made at the 23 March 2005 meeting to continue automatically to extend the Distribution Agreement each year for a further 12 months "thereby ensuring a rolling 5 year term at all times". However I would make the following observations. Neither the entire agreement clause (cl 45) nor the writing requirement of cl 50.2 provided an impediment to an oral variation of the Distribution Agreement if such an agreement was in fact reached. I considered the efficacy of "no oral modification" clauses at length in GEC Marconi Systems Pty Ltd , at [214]-[222]. The rule to be applied to such clauses reflects the observation made by Cardozo J in Beatty v Guggenheim Exploration Co 122 NE 378 (1919): "Whenever two men contract, no limitation self imposed can destroy their power to contract again". I would add, as I said in GEC Marconi (at [220]): (5) The usual objection raised to depriving a no oral modification clause of legal effect is that it involves a failure to give effect to what the parties have agreed. In the present case GEC Marconi has raised just this objection. The vice in it, though, is that a later oral or implied contract is itself an agreement. As a US commentator recently observed (Snyder, "The Law of Contract and the Concept of Change: Public and Private Attempts to Regulate Modification, Waiver and Estoppel" (1999) Wis L Rev 607 at p 640): The question for the court is not whether to honour the parties' original agreement, but rather which of their agreements should be effective. To say that contract law should enforce the parties' agreement, therefore, does not resolve the issue. The question is whether to enforce the first agreement or the second. The common-law courts addressing [no oral modification] issues chose the second. This choice makes a fair amount of sense; the later agreement probably reflects what the parties want better than their earlier agreement does. I would add that the opinion expressed in the second quoted paragraph is particularly appropriate to relational contracts which, as in the present instance, may be evolutionary in character. |
15,959 | Case16089 | applied | Thomas v New South Wales [2006] NSWSC 380 | Thomas v New South Wales [2006] NSWSC 380 (' Thomas' ), McClellan CJ at Common Law applied these principles to the documents which underpinned or supported the advice of counsel. His Honour stated at [17]: in the present case the primary document for which privilege was expressly waived was the advice of counsel, I can discern no difference in principle between such an advice and the advice or report of an expert retained for the purpose of the litigation. As I have indicated, I am satisfied that counsel relied upon instructions which they were given and, it would appear, relied upon medical reports in a way which influenced the content of the advice which they gave. Accordingly, insofar as there are documents which were relied upon in the preparation of the advice falling within categories 1, 2, 3 and 5 of the notice to produce, the service of the affidavit impliedly waived privilege in those documents.' Later at [20] his Honour said: In the present case the plaintiff disclosed the advice in these proceedings for the purpose of obtaining whatever assistance he could from that advice in pursuit of his claim. To my mind, that disclosure waived his privilege both in the advice itself and the documents which were used by counsel and which influenced the content of the advice. Waiver having occurred, the fact that the advice was not ultimately tendered is, to my mind, not relevant. Having sought an advantage, the plaintiff was bound by the course he had taken and accordingly is amenable to producing the relevant documents in response to an appropriate notice to produce.' According to the authorities discussed above, the limits of any waiver of associated material depend upon the nature of the advice that has been disclosed, what was represented by means of the disclosure, and the character of the transaction that gave rise to the disclosed legal advice. Regard must also be had to the way in which AWB's legal advice was described in the various disclosures. Essentially, by means of the disclosures, AWB was asserting that a detailed legal review had been undertaken, and that it had concluded that there was no evidence of any wrongdoing or other improper conduct by AWB in connection with its sale of wheat to Iraq under the OFF Programme. In my opinion, the nature and character of this disclosure is inconsistent with the maintenance of confidentiality in those documents which were taken into account by AWB's legal advisers in arriving at the advice they gave. To adapt the language used by McClellan CJ at Common Law in Thomas at [17] and [20], AWB's disclosures of its legal advice effect a waiver of privilege in the documents which were reviewed for the purposes of that advice or which influenced its content. Furthermore, AWB emphasised the breadth of its internal review in its various disclosures. In my view, AWB thereby waived privilege in documents which define the scope of the review or which reveal what investigations were in fact undertaken in the course of the review. |
2,074 | Case2096 | considered | Duncan v Chief Executive Officer, Centrelink (No 2) [2008] FCA 667 | Even in federal judicial review proceedings unconcerned with the Native Title Act , costs do not invariably follow the event. Duncan v Chief Executive Officer, Centrelink (No 2) [2008] FCA 667 (Finn J) offers a recent example. In that case, (at para 4) his Honour observed: Notwithstanding the ordinary principle of costs following the event, there are two considerations of potentially present relevance of which account properly can be taken in justification of a departure from that principle. These are the reasonableness of the applicant in bringing the application and where the respondent, as in this case, is a public authority, the general importance both of the clarification of the law for such an authority and of securing proper compliance with it: see eg Perrett v Commissioner for Superannuation (1991) 29 FCR 581 at 594; see also Wilderness Society Inc v Hon Malcolm Turnbull, Minister for Environment and Water Resources [2008] FCAFC 19 at [7] . 26 In this case, the Applicants did reasonably bring the judicial review proceeding. QWI was not a party charged with the administration of the registration of ILUAs under the Native Title Act . Its interests though could hardly be described as private. It is an emanation of the State of Queensland specifically charged with the construction of a project considered necessary for the supplementation of the water supply in South East Queensland. It had a very particular public interest in the due administration and construction of the provisions governing the registration of an area agreement in the Native Title Act . In that regard, and in the face of a submission by QWI to the contrary, the Applicants have at least secured this Court's guidance as to matters which the Registrar and delegates can and should take into account when deciding a registration application. 27 The factors for and against the making of an order for costs as sought by QWI are certainly not all one way. On the balance, in my opinion, in the particular circumstances of this case, there should not be an award of costs in favour of QWI against the Applicants. In voicing that opinion, I have taken into account whether, if not appropriate to award QWI all its costs, some percentage order might alternatively be made. 28 The further order that I make in the proceedings is therefore that there be no order as to costs, either in respect of the costs of the First Respondent or in respect of the costs of the Second Respondent. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate: Dated: 2 October 2008 Counsel for the Applicants: Mr Balzamo Solicitor for the Applicants: Black & Co Lawyers Solicitor for the First Respondent: Holding Redlich Lawyers Counsel for the Second Respondent: Ms Bowskill Solicitor for the Second Respondent: McCullough Robertson Lawyers Date of Hearing: 1 October 2008 Date of Judgment: 2 October 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1479.html |
14,040 | Case14164 | applied | Walton v Gardiner [1992] HCA 12 ; (1983) 177 CLR 378 at 393 | The Federal magistrate was satisfied that the present application fell within the principles addressed by Mason CJ, Deane and Dawson JJ in Walton v Gardiner [1992] HCA 12 ; (1983) 177 CLR 378 at 393, and concluded as follows in her reasons for judgment of 17 January 2006: 'I consider that the bringing of the current application can be considered unjustifiably vexatious amounting to an abuse of process, particularly having regard to the underlying public interest in the finality of litigation. I am satisfied that the current proceedings are an abuse of process and ought to be summarily dismissed to avoid further public expense in defending proceedings that have already taken up the resources of the Federal Magistrates Court, the Federal Court and the High Court and have raised no arguable case.' 4 It has been long established that an application for leave to appeal should fail if no arguable ground of appeal is raised by the applicant, or if the judgment below is not attended by sufficient doubt to warrant allowing the application or the appeal to go forward. 5 The applicants have failed to identify any conceivably viable arguable ground of appeal. The draft notice of appeal and purported written submissions make unparticularised allegations of error in the Federal Magistrate's decision and of jurisdictional error in the earlier Refugee Review Tribunal's reasons for decision. The applicants' written submissions also seek in substance and reality impermissible merits review. At least in the absence of any evidence to support those allegations or any particulars in order to render the same meaningful, which is the situation here readily evident, the present purported application must necessarily fail. |
11,388 | Case11500 | followed | Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others [1986] HCA 40 ; (1986) 162 CLR 24 | In these circumstances, the Court cannot substitute its own decision for that of the Tribunal: see Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others [1986] HCA 40 ; (1986) 162 CLR 24 per Mason J at 40-41. 31 Although it is inappropriate for the Court to trespass into the merits, the Court notes that Ms Budd misinterprets the travel test in s 1035(2) of the Act. Her submissions at hearing and her correspondence with the Court continually reiterated that she 'does the work' and that she 'does the travel' . However, the existence of these two facts in isolation does not satisfy the travel test in s 1035(2). The determinative issue before the Tribunal was whether she was required to travel in order to perform the work. The Tribunal found against Ms Budd on such issue and this Court cannot interfere with that finding. 32 It follows from the above that it is not 'in the interest of justice' to grant leave to Ms Budd to file and serve a notice of appeal out of time pursuant to s 44(2A)(a) of the AAT Act. The Court accordingly dismisses the application with costs. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy. Associate: Dated: 17 October 2008 Counsel for the Applicant: The Applicant appeared in person by telephone. Solicitor for the Applicant: Australian Government Solicitor Date of Hearing: 23 September 2008 Date of Judgment: 17 October 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1540.html |
16,308 | Case16438 | cited | SZILQ v Minister for Immigration and Citizenship [2007] FCA 942 | If, in the circumstances, the Tribunal was under an obligation to put the inconsistent statements to the appellant for comment, that obligation could only have arisen if, and to the extent that, s 425 of the Act so dictated in the circumstances. It prescribed the opportunity that was to be given in circumstances such as the present to an applicant at a Tribunal hearing by way of "the natural justice hearing rule" beyond what was required by s 424A: cf SZILQ v Minister for Immigration and Citizenship [2007] FCA 942. |
13,559 | Case13680 | cited | Australian Competition and Consumer Commission v Leelee Pty Ltd [1999] FCA 1121 | In Australian Competition and Consumer Commission v Leelee Pty Ltd [1999] FCA 1121 , Mansfield J said (at [61]): 'The principle recognised in Dietrich ... is a feature of the entitlement to procedural fairness, but it is confined to serious criminal proceedings. That decision was not intended to apply in respect of civil proceedings: New South Wales v Canellis [1994] HCA 51 ; (1994) 181 CLR 309 at 328-329 per Mason CJ, Dawson, Toohey and McHugh JJ.' |
5,662 | Case5721 | cited | National Australia Bank Ltd v Nobile (1988) 100 ALR 227 | Amendments to pleadings should be allowed if it would not be unjust to do so: see National Australia Bank Ltd v Nobile (1988) 100 ALR 227 at 235-6 per Davies J. In my view, that test cannot be satisfied in the present case. The fact is that the respondents have been denied the opportunity to put on further evidence as to the value of the additional fixtures and fittings. They would be prejudiced if an amendment were allowed. Accordingly, leave to amend the further amended statement of claim is denied. 123 The appropriate course for the applicant to have taken was for it to have sought leave to amend its statement of claim after the conclusion of Mr Allen's evidence. It was during that evidence that the applicant contended it became clear that it would rely upon this ground as a basis for invalidity of the notice. By doing this, it may have avoided the prejudice it now claims it will suffer as a result of the pleadings not reflecting its claims in relation to the fixtures and fittings. 124 In any event, I would decline the application for leave to amend in part on the basis that the applicant's submission regarding the proper construction of clause 3.2.2 is by no means compelling (though it is plainly arguable). It is clear that the strength of the applicant's case, in relation to the proposed amendment, is a relevant consideration when determining whether to grant leave to amend. Had the applicant demonstrated a stronger case, regarding this issue, I may have been minded to allow the applicant to reopen its case, and the respondents to adduce further evidence in response. When all that can be said is that there is an arguable case, the balance of convenience weighs against adopting that course. |
4,044 | Case4085 | referred to | Lane v Registrar of Supreme Court of NSW [1981] HCA 35 ; (1981) 148 CLR 245 | For my part, were I free to do so, I would regard all contempts which interfere with the course of justice or the due administration of the law ( Lane v Registrar of Supreme Court of NSW [1981] HCA 35 ; (1981) 148 CLR 245 at 257-258; Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd [1986] HCA 46 ; (1986) 161 CLR 98 at 107) as criminal offences because they denote a qualification or impediment on (e.g. contempts by publication which can be unknowing) or a refusal to obey the lawful authority of the Court. When the Court enjoins a person from acting in a particular way, it is undoubtedly saying that it will be a breach of the law so to act thereafter. Why, when the person breaches the injunction is his or her behaviour any less serious or different in character than a breach of a statutory prohibition to which criminal sanctions also attach? |
6,536 | Case6601 | related | Davis v Insolvency and Trustee Service Australia (No 1) [2009] FCA 562 | basis of the disqualification application is that, in light of a judgment which I delivered at 9.45 am this morning ( Davis v Insolvency and Trustee Service Australia (No 1) [2009] FCA 562), I should not proceed to hear the Motion because I had come to final views in respect of matters which inevitably arise for decision on that Motion. In support of that submission, Counsel for the applicant drew my attention to several passages in this morning's judgment and submitted that, in those passages, I had travelled beyond what was required by the relevant principles and made conclusive findings of fact. At [48] and [49] of that judgment, I set out what I considered to be the relevant principles governing the grant of interlocutory injunctive relief in aid of private rights. Counsel for the applicant has repeatedly submitted that all that I was obliged to do was ascertain whether there was a triable issue in respect of the claims being advanced in support of the relief sought on 24 April 2009. I disagree. I made clear at [48] and [49] of the judgment delivered earlier this morning that the principles which are in play here are those set out in those paragraphs. What is required is more than a triable issue. In my view, in order to determine the application for interlocutory relief made by the applicant on 24 April 2009, it was necessary for me to consider whether there was a serious question to be tried in respect of the claims which were said to support that application and also to address, if necessary, the balance of convenience and justice. That is what I did. The substance of what has been put to me this morning in support of the disqualification application is that I have made definitive findings on matters which are up for consideration in the Motion which is to be called on before me shortly. I do not agree. As I have already mentioned, in the paragraphs to which my attention has been drawn, I was addressing whether or not there was a serious question to be tried. That was made clear by the heading to [61] and by the way in which I expressed the conclusion which I reached (at [73]) on the claim for an interlocutory injunction in respect of the s 72A Notice, that is to say, that the applicant had failed to establish that there was a serious question to be tried in relation to the relief sought. Given the types of arguments that were advanced in respect of the s 72A Notice which was the subject of the interlocutory application determined by this morning's judgment, in my opinion, I was required to look at that Notice and come to a view about those arguments for the purpose of considering whether or not there was any serious question to be tried. I do not think that being required to undertake that exercise in the context in which I did, precludes me from hearing the present application. For those reasons I decline to disqualify myself. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster. Associate: Dated: 1 June 2009 Counsel for the Applicant: Mr PE King Solicitor for the Applicant: McKells Solicitors The First Respondent did not appear Solicitor for the Second Respondent: Mr N Gouliaditis of Australian Government Solicitor The Third Respondent did not appear The Fourth Respondent did not appear Date of Hearing: 29 May 2009 Date of Judgment: 29 May 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/589.html |
13,412 | Case13533 | cited | Al Raied v Minister for Immigration and Multicultural Affairs [2000] FCA 1357 | In Al Raied v Minister for Immigration and Multicultural Affairs [2000] FCA 1357 at [6] I deprecated the artificiality of a statement such as that purportedly made by SZJXW in this matter. I endorse the observation subsequently made by Madgwick J in SBAH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 426 ; (2002) 126 FCR 552 at [9] . His Honour there said: ...there appears to be a need for legislative attention to the difficult and sensitive problem of dealing fairly and practically with the position, at various points primary decision, the Refugee Review Tribunal review, and judicial review of a child present in Australia who may be in need of asylum for reasons recognised by the relevant Convention. |
20,522 | Case20708 | considered | Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 ; Applicant S106/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 30 ; (2003) 77 ALJR 1165 | Bond's Case , Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002; Applicant S106/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 30 ; (2003) 77 ALJR 1165 has, materially, been decided. The implications of the judgments delivered in that case in relation to the judicial review of fact finding form the centrepiece of a valuable discussion by Aronson M, Dyer B, Groves M in their work, Judicial Review of Administrative Action (4 th ed, Law Book Co, 2009) ( Judicial Review of Administrative Action ) at p 265 et seq on the subject "Challenging seriously irrational or illogical fact finding". While the whole of that discussion repays study in the present context, the following passage (at pp 271-273) is, in my opinion, particularly apposite: Lee J dissented as to the result in WAHP v Minister for Immigration and Multicultural and Indigenous Affairs, but his Honour's statement of the relevant principles was not affected: 'The [Refugee Review] Tribunal obtains power to make a determination under the Act where the determination is based on findings or inferences of fact that are grounded upon probative material and logical grounds. A determination that is based on illogical or irrational findings or inferences of fact may be shown to have no better foundation than an arbitrary decision and accordingly the review process will be unfair and will not have been conducted according to law. Here, of course, the words "irrational" or 'illogical' are used with their proper meaning of devoid of, or contrary to, logic; or ignorant or negligent of, and not in conformity with, the laws of correct reasoning, and are analogues of arbitrary or perverse. They are not sued with a lesser colloquial meaning that may be applied where the words are introduced in debate to emphasise the degree of dissent from a disputed conclusion or point of view. Illogical or irrational findings or inferences of fact upon which a determination is based examinable as part of the matter that is subject to judicial review pursuant to the application for a prerogative or constitutional writ.' The Federal Court accepts that whether a decision is sufficiently irrational to meet S20's standard 'will, in our view, always be a matter of degree", but it rejects the English approach to Wednesbury , which sets a more demanding standard of reasonableness where import human rights are at stake. Allsop J gave the following summary: 'There may be circumstances where the findings of fact are so irrational or capricious as to display a failure of the Tribunal to attend conscientiously and appropriately to its statutory obligations.' [4.435] A real question now arises as to whether the courts will or should continue to stretch the procedural fairness rule of natural justice to accommodate a complaint that the decision-maker has made a serious factual mistake. It might be helpful to explore that question in the context of the House of Lords decision in R v Criminal Injuries Compensation Board; Ex parte A . The board had disbelieved the applicant's story, without hearing directly from her or at all from the police doctor who had examined her. The police had encouraged the applicant to adopt a passive role, on the assurance that they would do everything necessary at the board hearing. However, the police grossly misrepresented the doctor's report, innocently as the House was prepared to assume. With no blame attaching to the board, their Lordships granted review on either of tow bases, namely, fundamental error of fact and breach of natural justice. Natural justice was their preferred ground, but Ex parte A has since been endorsed for its recognition of fact review. If the English position does indeed allow review for fundamental error of fact, it goes considerably further than S20 , because such error can occur without procedural unfairness, irrationally or illogicalilty. We doubt that Australian common law will go that far. The High Court has doubted Ex Parte A's reasoning, at least so far as it was based upon natural justice, and quite possibly on the "error of fact" basis as well. The High Court suggested that Ex Parte A might be better analysed as involving a procedural error on the part of the police, thereby attracting review under ADJR's "procedural error" ground where ADJR applies. [Footnote references omitted] Like the learned authors of Judicial Review of Administrative Action , I conceive that the passage quoted from the judgment of Lee J in WAHP v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 87 contains an accurate statement of relevant Australian principle in light of S20/2002 . |
19,060 | Case19232 | cited | Corney v Brien [1951] HCA 31 ; (1951) 84 CLR 343 | Where a petitioning creditor relies on a judgment debt the Court must be satisfied as to the validity of the debt and, to that extent, it may be said that the judgment 'is never conclusive in bankruptcy'; Wren v Mahony [1972] HCA 5 ; (1972) 126 CLR 212 at 224. It is accepted however, that the Court will not investigate validity as a matter of course; Simon v Vincent J. O'Gorman Pty Ltd (1979) 41 FLR 95 at 111, Commonwealth Bank of Australia v Jeans [2005] FCA 978. There must be something to suggest that no real debt lay behind the judgment, whether because of fraud, collusion or miscarriage of justice; Corney v Brien [1951] HCA 31 ; (1951) 84 CLR 343 at 357; Udovenko v Mitchell (1997) 79 FCR 418 at 421. |
17,699 | Case17851 | cited | Australian Competition and Consumer Commission v Ferndale Recyclers Pty Ltd [2004] FCA 1597 | The French factors and the Heerey factors have been applied in numerous subsequent Federal Court decisions: see, for recent examples, Australian Competition and Consumer Commission v D M Faulkner Pty Ltd [2004] FCA 1666 at [53] ; Australian Competition and Consumer Commission v Ferndale Recyclers Pty Ltd [2004] FCA 1597 at [7] ; Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 3) (2005) 215 ALR 301 ( "ACCC v Leahy" ) at [32] [33]. |
2,221 | Case2244 | cited | Brown v The Repatriation Commission [1985] FCA 194 ; (1985) 7 FCR 302 | Section 44 of the Tribunal Act provides that a party may appeal to the Federal Court, on a question of law, from any decision of the Tribunal. The existence of a question of law is not merely a qualifying condition to ground an appeal from a decision of the Tribunal. Rather, it and it alone, is the subject matter of the appeal and the ambit of the appeal is confined to that question of law: Brown v The Repatriation Commission [1985] FCA 194 ; (1985) 7 FCR 302. The Commissioner contends that the first three of those purported questions are not questions of law and should be struck out. 37 The thrust of the Taxpayer's contentions, in effect, is that, at the time of the termination of his employment, he was physically located in Tokyo and was not a resident of Australia. He contends that, while the period of reasonable notice may properly be determined by reference to the time of his employment by Deutsche Australia, the relevant fact is that, at the time of termination, he was being remunerated by Deutsche Securities and the Redundancy Payment was made in circumstances where he had asserted, through his solicitors, an entitlement to a payment equivalent to 24 months' salary, and had asserted that any such payment would not be subject to deduction of tax because it was a payment within the definition in s 27A. 38 The grounds of appeal are not easy to comprehend. First, the Taxpayer says that the Tribunal erred in considering that legal employment by Deutsche Australia, an Australian entity, was service not in a foreign country under paragraph (iii). Rather, he says, the Tribunal should have considered the legislative context, which included s 23AG of the Assessment Act, which had the effect that salary paid while not a resident would be exempt. The Taxpayer asserts that, had he been given reasonable notice, the reasonable notice period of 14 months would have been worked out in Japan for which he would have received salary that would have been exempt. However, there was no finding to that effect by the Tribunal. Indeed, the Tribunal was not asked to make such a finding. It is certainly not self-evident that such a finding should or could have been made on the material before the Tribunal. The first ground has no substance. |
3,658 | Case3696 | considered | Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 ; (2005) 225 CLR 88 | fact that a decision-maker may later have chosen not to apply adverse information does not bear upon whether an affected person should be afforded an opportunity to deal with adverse information that is credible, relevant and significant to the determination to be made. A decision-maker can only dismiss information from further consideration if it is evidently not credible, nor relevant and of little or no significance to the determination to be made (see Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 ; (2005) 225 CLR 88 ('Applicant VEAL') at [14]-[18]). In Applicant VEAL the High Court held that procedural fairness required the Refugee Review Tribunal to inform the applicant for a protection visa of the existence of an unsolicited letter which had been forwarded to the Department in which the author made certain allegations against the appellant, and of its contents, before the Tribunal decided to affirm the refusal of the Minister's delegate to grant the appellant a protection visa. In my opinion, the primary issues in this case should be decided as follows: (a) Mr Arthur did not exceed his authority in making the findings that he did. Whilst the 'scope' of the investigation for which his contract for services dated 10 December 2007 provided could be said to limit his authority to the making of a determination in respect of a suspected breach of that part of the Code of Conduct contained in s 13(3) of the Act in respect of Mr Lohse's alleged behaviour 'in a harassing manner' towards Ms Barclay, especially given the express qualification 'In the case Ian Arthur believes there is a requirement to investigate outside of this scope it must first be discussed and approved by the Project Officer', coupled with the respondents' concession that no approval to investigate otherwise was discussed and obtained, nevertheless the limitation of the relevant 'scope' needs to be viewed in the light of Mr Arthur's formal selection of 4 December 2007 to determine, in accordance with the Secretary's Procedures for Determining Breaches of the APS Code of Conduct dated 5 December 2009, whether Mr Lohse breached the 'APS Code of Conduct' and not simply a discrete part of it. In addition, the Secretary's Procedures clearly contemplated consideration of 'details of the suspected breach of the Code of Conduct ( including any variation of those details )'. (b) Mr Arthur did fail to comply with the procedures established by the Head of the Department for the determination of whether Mr Lohse, as an APS employee, breached the Code of Conduct. Firstly, Mr Lohse was never informed of the suspected breach of the Code of Conduct, which led to Mr Arthur's appointment as the decision-maker, before the variation of those details by Mr Arthur as recorded in his letter to Mr Lohse of 22 January 2008. In my view the details of the suspected breach of the Code of Conduct as recorded in the three bullet points in paragraph 2 of the Terms of Reference, forming part of Mr Arthur's contract for services dated 10 December 2007, were details of which disclosure to Mr Lohse was mandatory (see [13] above). The Secretary's procedures (see [23] et seq) provided 'the employee must be informed of' such details (emphasis added). Whilst it was open to Mr Arthur to inform Mr Lohse of a variation of those details, as he did in his letter dated 22 January 2008, it was not sufficient to simply inform Mr Lohse of the details as varied. Mr Lohse was entitled to the details of the suspected breach which led to the appointment of Mr Arthur and also to the variation of those details, which emanated from Mr Arthur. Secondly, and perhaps more importantly, the mandatory requirement that Mr Lohse ' must also be given the opportunity to make an oral statement in relation to the suspected breach' (emphasis added), as stipulated in the Secretary's procedures (see [29] above), was denied to him. Whatever Mr Lohse may have said about declining to be interviewed by Mr Arthur on tape, that was clearly put to him as an alternative to his provision, in the first instance, of a written response to the details of the suspected breach of the Code of Conduct. What Step 3 in the Secretary's Procedures makes clear is that if, as here, Mr Lohse made a written statement in response to the details of the suspected breach of the Code of Conduct of which he was informed, it was obligatory that he be given an opportunity to make an oral statement in relation to the suspected breach thereafter. No such opportunity was provided. A failure to observe the Secretary's procedures as procedures established by the 'Agency Head' for determining whether an APS employee in the Agency had breached the Code of Conduct in this case constituted jurisdictional error. One can well imagine that if an APS employee in the position of Mr Lohse had an opportunity to make an oral statement in relation to the suspected breach he would be able to ensure that appropriate emphasis was given to the matters addressed in his written statement thereby ensuring that the decision-maker did not misunderstand what had been written. No doubt an oral statement would also be relevant to matters of credit which would ensure that justice was done and that matters were not simply decided on a '3 against 1' basis. Counsel for the respondents relies upon the preferred test stated by McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 390 in respect of invalidity, where a relevant provision had not been complied with. At [93] their Honours said: '... a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. ... In determining the question of purpose, regard must be had to "the language of the relevant provision and the scope and object of the whole statute".' (Footnotes omitted) In the present case the legislation made it clear that the Agency Head's procedures for determining whether an APS employee had breached the Code of Conduct or not 'must have due regard to procedural fairness'. In the circumstances it is hardly surprising that the Secretary's Procedures for determining Breaches of the APS Code of Conduct provided that ' If the employee makes a written statement [within the requisite period of time] of being given the opportunity to do so, the employee must also be give the opportunity to make an oral statement in relation to the suspected breach'. The use of the expression 'must also' following the words commencing with 'if' make it clear that the opportunity to make an oral statement must be afforded after the written statement for which the procedures provide, has been made. Given the range of possible sanctions available, in circumstances where a person in the position of Mr Arthur may find that a person in the position of the applicant breached the Code of Conduct, fairness clearly required that an opportunity be afforded to Mr Lohse to make an oral statement following the making by him of his written submission to Mr Arthur on 11 March 2008 and before Mr Arthur made his determination of 30 March 2008. Given that there was no 'hearing', Mr Lohse was not invited to be present when Ms Barclay and Mr Hislop were interviewed and Mr Lohse did not have an opportunity to cross-examine them, fairness clearly required that there be a procedure such as that established by the Agency Head and further that such procedure be strictly complied with. This is not a case where earlier indications by Mr Lohse of his preference for making a written statement, as opposed to participating in an oral interview, in response to the details of the suspected breach of the Code of Conduct, of which he was informed, could be relied upon to justify refusal of the relief sought by Mr Lohse, in the exercise of the Court's discretion in that regard. (c) In my opinion procedural fairness did not require disclosure by Mr Arthur to Mr Lohse of the allegations made by Ms Barclay referable to Mrs Lane or Mrs Lane's 14 year old daughter. It is evident that Ms Barclay did not know anything about any alleged misconduct of Mr Lohse towards Mrs Lane's 14 year of daughter. She conceded as much in her interview with Mr Arthur. In relation to Mrs Lane, Ms Barclay suggested that Mrs Lane had informed her that she felt a bit uneasy with Mr Lohse, that he had 'tried to make moves' and had sent Mrs Lane 'some text messages on a trip'. Ms Barclay informed Mr Arthur that she had no knowledge as to the content of those messages. In the circumstances a failure to disclose these matters to Mr Lohse could not constitute procedural unfairness. Allegations of misconduct in dealings with Mrs Lane and her daughter which were devoid of any content could not, in my opinion, have subconsciously affected Mr Arthur's decision-making process in respect of the suspected breaches of the Code of Conduct to which he was invited to respond. However, there should in my opinion, have been a disclosure to Mr Lohse of the matters put to Mr Arthur by Ms Barclay about Mr Lohse's alleged viewing of Ms Barclay and her breasts in a 'sleazy manner' on earlier occasions. The ultimate finding of Mr Arthur in relation to a suspected contravention of s 13(3) of the Act (part of the Code of Conduct), was not that Mr Lohse behaved in a 'harassing manner' towards Ms Barclay, but rather, that he failed to treat her 'with respect and courtesy'. During the course of her interview with Mr Arthur on 21 December 2007 Ms Barclay was asked about the level of contact she had had with Mr Lohse in the five months preceding the incident. She said: '... he has the first desk within the office and as I walk in ... he looks straight up as I walk in. When I walk in, every time I feel he looks down and does this look like he's looking he looks over his glasses and looks at me, yes, in a sleazy manner, if I could say.' When asked if she might be 'over reacting' Ms Barclay said to Mr Arthur: 'No. On a couple of occasions, like when I've ... a different top ... other than a business shirt ... on one occasion I walked out of the door and he ... stood there at the door ...looked at my like, my breasts. Or, to me, he was looking at that direction.' Later Ms Barclay said in relation to her working relationship with Mr Lohse: 'He makes me feel uncomfortable'. Later she said: 'I find him creepy and I don't feel comfortable with him ...' Ms Barclay further alleged that on the evening of 7 November 2007 when Mr Lohse left the table to have a cigarette and said to female passers-by 'Here, puss, puss, puss' he: '.... was doing like, hand gestures also, like rubbing his thumb and his finger, going like downwards you know, sort of the genital area, I guess you'd say, down further.' Ms Barclay opined that members of the public viewing Mr Lohse's behaviour: '... would have thought it was disgusting and disgraceful and probably would have thought they're wasting their taxpayer's money ... if people are seeing badly behaved public servants.' When asked whether any people in the vicinity objected to Mr Lohse's alleged behaviour Ms Barclay said no more than 'I did see a couple of expressions of females ...' In my opinion the above quoted information answered the description of being credible, relevant and significant to the determinations to be made by Mr Arthur such that it would be unfair to deny Mr Lohse an opportunity to deal with it, there being a real risk of prejudice, albeit subconscious, arising from Mr Arthur's possession of the relevant information and Mr Lohse's ignorance of it. This was a classic case for the application of the principles stated in Applicant VEAL , especially in circumstances where there was no formal hearing, Mr Lohse had no opportunity to hear what Ms Barclay said to Mr Arthur at her interview on 21 December 2007 nor did he have an opportunity to test its accuracy by cross-examining her. The consequences for Mr Lohse of acceptance of Ms Barclay's untested assertions obliged Mr Arthur, acting fairly, to disclose the matters mentioned by Ms Barclay to Mr Lohse, thereby affording him an opportunity to respond to same. (d) Procedural fairness did not require Mr Arthur to make inquiries into the matters referred to at [16](d)(i)-(vi) above. There were no relevant rare or exceptional circumstances requiring Mr Arthur to make the further inquiries for which Mr Lohse contended. There was no matter that obviously required further inquiry in relation to a critical fact or facts. Had Mr Lohse wished to provide support for his claims of prior good character, it was perfectly open to him to obtain character references and attach them to his response of 11 March 2008. Similarly, if Mr Lohse was of the view that Ms Barclay and/or Mr Coloe bore ill will towards him, he could have obtained statements from others to support that suggestion and attached them to his response of 11 March 2008. (e) Much of the evidence touching upon Mr Arthur's consideration of this matter prior to the making by him of his determination on 30 March 2008 supports an inference that Mr Arthur did not bring an open mind to the determination of the issues with which he was confronted. In my opinion one cannot simply look at his ultimate reasons and work backwards from the manner in which he expressed them to an inference that he did bring an open mind to the issues. As previously mentioned Mr Arthur's more detailed summary of the particulars of the allegations against Mr Lohse of 3 March 2008 included: 'Upon completing your duties [on 7 November 2007] , the four of you gathered at the Jetty Hotel for a meal and debriefing of the day's activities.' In my opinion the applicant's submission that the word 'debriefing' was one suggested by Mr Arthur should be upheld. The first issue in the 'scope' of Mr Arthur's engagement to which he was required to adhere when conducting his investigation (see [13] above) was: '● As a threshold matter, determine if any of Mr Lohse's alleged behaviour(s) occurred while Mr Lohse was acting in the course of APS employment; ...' Not one of the four APS employees who gathered at the Jetty Hotel on 7 November 2007 suggested that the purpose of the gathering was to effect a 'debrief'. The suggestion that this was the purpose of the gathering was that of Mr Arthur who on two occasions in the course of his interview of Ms Barclay on 21 December 2007 said 'essentially, it was a debrief'. On the first occasion he raised it as a question and on the second he asserted it as conclusion. This characterisation of the gathering was in the face of Mr Coloe's, Ms Barclay's and Mr Hislop's observations. Mr Coloe said: 'After executing the warrants, seizing property and having it secured [on 7 November 2007] we returned to our accommodation [a hotel located near to the Jetty Hotel at Glenelg] . That evening the four of us went out for dinner and a few drinks. ...' In Ms Barclay's statement of 21 November 2007 she said: 'On completion of our duties [on 7 November 2007] we returned to our hotel. That evening we all met in the foyer of the hotel and walked to the Jetty Hotel for drinks and dinner. ...' In his interview of Mr Hislop on 21 December 2007 the following exchange took place with Mr Arthur: Arthur: '... I understand that that search warrant was in fact executed on the 7 th November during the day?' Hislop: 'That's right, yes.' Arthur: 'Okay. And later that evening you went somewhere for drinks.' Hislop: '... yes, we just went to a general bar [at the Jetty Hotel in Glenelg] for just down from the hotel.' After Mr Arthur, in his interview of Ms Barclay, queried whether the purpose of the gathering at the Jetty Hotel was essentially a debrief, Ms Barclay did agree. She said: '... so we spoke about the things that we'd observed in that shop. ... ... after we'd finished that warrant ... I went back to the hotel with John [Coloe] in one car and he [Mr Lohse] went back in another car with Andrew [Hislop] . So we didn't have any time of talking about what had happened during the day until we'd met up for dinner.' It was at this stage that Mr Arthur observed ' all right. So, yes, it's essentially a debrief ', to which proposition Ms Barclay assented. Given that a contravention of s 13(3) of the Code of Conduct required a finding that an 'APS employee, when acting in the course of APS employment , must treat everyone with respect and courtesy' it may be said that Mr Arthur's suggestion and subsequent confirmation of the purpose of the gathering at the Jetty Hotel demonstrated a prejudgment on a material issue before Mr Lohse was even informed of the allegations against him on 22 January 2008. Other matters arose during Mr Arthur's interview of Ms Barclay on 21 December 2007 which supported an inference that, by the time Mr Lohse first had notice of the investigation into his alleged breach of the APS Code of Conduct, Mr Arthur had a closed mind which was not open to persuasion one way or the other. Just as Mr Arthur had suggested that the dinner and drinks gathering of the four APS employees had essentially been an employment based debriefing meeting, he also suggested to Ms Barclay that Mr Coloe's reaction to what had happened when Mr Lohse presented Ms Barclay with the flower was one of 'surprise' when she had failed to articulate any matter which would justify such a conclusion. When Ms Barclay said that the alleged statement attributed to Mr Lohse about 'how I always smell good' intimidated her, Mr Arthur impliedly accepted the premise upon which the claimed intimidation was based by saying 'Yes, I can understand that'. When Ms Barclay made mention of Mrs Lane and an alleged conversation in which Mrs Lane spoke about Mr Lohse's behaviour towards Mrs Lane on some trips that they had previously made together, Mr Arthur inquired as to what sort of behaviour. Rather than allowing Ms Barclay to answer the question as to what Mrs Lane had allegedly spoken of, he suggested the word 'similar'. He then proceeded to suggest that Mr Lohse had been 'making advances' to Mrs Lane. The suggestion was embraced by Ms Barclay who agreed with it. In relation to Mr Lohse's alleged 'here puss puss puss' remark and movement of his hand, Ms Barclay said on 21 December 2007 'he just disgusted me'. Once again, it would appear that Mr Arthur accepted the premise upon which the observation was made by saying and repeating it 'I'm not doubting that'. Ms Barclay said of Mr Lohse's behaviour, ' it's not the behaviour that I am used to being around ... you know, starting in a workplace that you're on an Executive Level 2 position, I thought that ... you should be ... better behaved .' Mr Arthur responded to this proposition again indicating a seeming acceptance of the premise on which the observation had been based by saying: '... yes, I agree.' It would appear that before the interview concluded steps were taken to relocate Mr Arthur and Ms Barclay from the interview room. In this context Mr Arthur is recorded as saying: '... there is a bit more I'd like to go through. Actually, ... the remainder of this ... is fairly good. It's all good, anyway.' Rather than record that he understood the remaining matters which were addressed in Ms Barclay's statement of 21 November 2007, Mr Arthur appears to have communicated an acceptance of what had been said. In my opinion Mr Arthur did not approach the task which was entrusted to him with an open mind and he was not open to persuasion. The applicant's claim of bias has been made good. (f) Even if the evidence mentioned was not sufficiently strong to establish actual bias on the part of Mr Arthur, it was sufficient, in my opinion, to draw a conclusion of apprehended bias sufficient to constitute a denial of natural justice to Mr Lohse. In my opinion a hypothetical fair-minded lay person properly informed as to the nature of the process which Mr Arthur was engaged in and the possible sanctions which might be imposed upon Mr Lohse, might reasonably apprehend that Mr Arthur might not have brought an impartial mind to the making of his decision on alleged breaches of the APS Code of Conduct by Mr Lohse. A case of reasonable of apprehension of bias has clearly been made out. (g) In my opinion the decision of Mr Arthur as recorded in his report of 30 March 2008 was not on its face so unreasonable that no reasonable decision-maker could have made it. Whilst one could criticise Mr Arthur's approach to the proof of matters on a '3 against 1' basis rather than who was to be believed and, whilst he may have failed to approach the determination of the matter before him on a Briginshaw v Briginshaw basis (see Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336) , I am inclined to the view that there was no relevant Wednesbury unreasonableness. This of course provides no answer to the case, given the other findings going to jurisdictional error and denial of natural justice which have been made. |
257 | Case262 | cited | State of Western Australia v Wardley Australia Ltd (1991) 30 FCR 245 | Competition and Consumer Commission v Global Prepaid Communications Pty Ltd (ACN 095 154 108) (inliquidation) (No 2) [2006] FCA 157 (27 February 2006) [ Home ] [ Databases ] [ WorldLII ] [ Search ] [ Feedback ] Federal Court of Australia You are here: AustLII >> Databases >> Federal Court of Australia >> 2006 >> [2006] FCA 157 [ Database Search ] [ Name Search ] [ Recent Decisions ] [ Noteup ] [ Download ] [ Help ] Australian Competition and Consumer Commission v Global Prepaid Communications Pty Ltd (ACN 095 154 108) (inliquidation) (No 2) [2006] FCA 157 (27 February 2006) Last Updated: 28 February 2006 FEDERAL COURT OF AUSTRALIA Australian Competition and Consumer Commission v Global Prepaid Communications Pty Ltd (ACN 095 154 108) (in liquidation) (No 2) [2006] FCA 157 TRADE PRACTICES form of relief indemnity for likely loss and damage pursuant to s 87 Trade Practices Act 1974 (Cth), s 87 Australian Competition and Consumer Commission v Global Prepaid Communications Pty Ltd (ACN 095 154 108) (in liquidation) [2006] FCA 146) related Leda Holdings Pty Ltd v Oraka Pty Ltd (1998) ATPR 41-601 cited Oraka Pty Ltd v Leda Holdings Pty Ltd (1997) ATPR 41-558 cited State of Western Australia v Wardley Australia Ltd (1991) 30 FCR 245 cited Wardley Australia Ltd v State of Western Australia [1992] HCA 55 ; (1992) 175 CLR 514 cited AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v GLOBAL PREPAID COMMUNICATIONS PTY LTD (ACN 095 154 108) (IN LIQUIDATION), IN TOUCH NETWORKS PTY LTD (ACN 098 279 746) (IN LIQUIDATION), NICHOLAS YATES, FRANK YATES, NICHOLAS RHODIN, DANIEL ALBERT AND RUSSELL FIELDING NSD 328 OF 2003 GYLES J 27 FEBRUARY 2006 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 328 OF 2003 BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION APPLICANT AND: GLOBAL PREPAID COMMUNICATIONS PTY LTD (ACN 095 154 108) (IN LIQUIDATION) FIRST RESPONDENT IN TOUCH NETWORKS PTY LTD (ACN 098 279 746) (IN LIQUIDATION) SECOND RESPONDENT NICHOLAS YATES THIRD RESPONDENT FRANK YATES FOURTH RESPONDENT NICHOLAS RHODIN FIFTH RESPONDENT DANIEL ALBERT SIXTH RESPONDENT RUSSELL FIELDING SEVENTH RESPONDENT JUDGE: GYLES J DATE: 27 FEBRUARY 2006 PLACE: SYDNEY SUPPLEMENTARY REASONS FOR JUDGMENT 1 I delivered reasons for judgment in this matter on 24 February 2006 ( Australian Competition and Consumer Commission v Global Prepaid Communications Pty Ltd (ACN 095 154 108) (in liquidation) [2006] FCA 146) and stood the matter over until today to enable orders to be made. My attention has been drawn to the fact that I did not explicitly deal with the form of order for compensation to be made in respect of Loncaric and Carlon Pty Limited insofar as there was a claim for contingent loss. 3 I am satisfied that the terms of s 87 are wide enough to authorise the inclusion of orders which have the effect of indemnifying Carlon Pty Limited from claims by the sub-distributors. Burchett J made a similar order in Oraka Pty Ltd v Leda Holdings Pty Ltd (1997) ATPR 41-558. That judgment was set aside on appeal but not because of any fault in the relief granted ( Leda Holdings Pty Ltd v Oraka Pty Ltd (1998) ATPR 41-601). Beaumont J, who dissented in the Full Court, expressly approved that order (at 40,509). It was supported by the authorities referred to by Burchett J. (See also State of Western Australia v Wardley Australia Ltd (1991) 30 FCR 245 at 261 and Wardley Australia Ltd v State of Western Australia [1992] HCA 55 ; (1992) 175 CLR 514 at 545). Whether such an order should be made is for the discretion of the Court in each case. |
12,465 | Case12582 | cited | Hudson v The Official Trustee & Ors [2007] FMCA 1357 | After the application was filed, a number of adjournments were occasioned by an application made by Mr Hudson in the Federal Magistrates Court ('the FMC application'). The FMC application, broadly, concerned the question of whether Mr Pascoe was validly appointed as Trustee of the Estate and whether the procedures subsequently adopted by him by which he objected to the discharge of Mr Hudson from bankruptcy were effective. On 10 August 2007 Wilson FM determined in Hudson v The Official Trustee & Ors [2007] FMCA 1357 that the Trustee was validly appointed and that the procedure by which he objected to the discharge of Mr Hudson from bankruptcy was effective. Subsequently Wilson FM dismissed the remaining matters in Mr Hudson's application, those orders being made on 17 August 2007. 4 The Trustee has established service of this application, effected on 10 November 2006. On none of the occasions when this matter has been before me has Mr Hudson appeared, despite service by the Trustee of letters informing him of each date on which this matter was next to be before the Court. As outlined in an affidavit of service of Melanie Cavanough sworn 2 July 2007, Mr Hudson was notified that the matter was to be heard today. The matter was called outside the Court and there was no appearance. 5 On 28 August 2007 a fax was received in my Chambers containing a notice of appeal from the decision of Wilson FM. The fax was not accompanied by any other documentation. In particular, there was no application for any stay of these proceedings pending the hearing of that appeal. Mr Pascoe presses to have the matter determined today. Apart from the number of times that the matter has already been before the Court, Ms Nash, who appears for Mr Pascoe, points to the remuneration and costs that have been incurred by the Trustee to date, which are well in excess of the amount available for distribution. Ms Nash also points to one of the proposed payments, namely, payment to the former wife and only creditor of Mr Hudson in the sum of $5,130.00. The evidence is that those moneys are due to Mrs Hudson as part of a settlement on her divorce from Mr Hudson, by reason of a miscalculation when the amount due was translated from New Zealand dollars to Australian dollars. |
3,394 | Case3431 | followed | Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72 | The applicant submitted that in fixing civil penalties, the Court should take account of the views of any relevant regulator as a specialist body, but that such views should not be treated as determinative. As much appears to be established by the decision of the Full Court in Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72. Accepting that decision as I must, I observe only that considerable care must be exercised in so doing, particularly where the regulator is a party to the proceedings. Such "views" must be more than bald assertions of the desired outcome in a particular case, or of the regulator's policy. One would expect some factual basis to be demonstrated for the views so advanced. A respondent might expect an opportunity to test the views and the facts upon which they are allegedly based. In other words, it may be necessary for the regulator to provide admissible lay and expert evidence. The Court cannot treat a statement as relevant if it is really only an opinion or statement of preferred outcome. I do not understand this issue to loom large in the present case. 58 The applicant's submissions deal in some detail with the purpose of the WR Act and the BCII Act, pointing to various reasons for treating breaches of industrial legislation as relatively serious. I doubt, however, whether such considerations are of particular relevance in a case such as this where the relevant conduct was limited in scope and effect. All legislation which prescribes penalties, criminal or otherwise, has the purpose of deterring conduct which is deemed to be undesirable. The important point is that the penalty be sufficiently substantial to act as an appropriate deterrent, having regard to matters which may tempt persons to infringe. The penalty must also be proportionate to the infringing conduct. 59 I infer that the First Strike action substantially disrupted work on the Ravensthorpe project. It lasted for 48 hours and involved about 400 workers. It may be, however, that little work would have been done at that time in any event. Weather conditions were unfavourable. No attempt was made to negotiate with the employers prior to taking industrial action. Such pre-emptive action may be attractive to workers and unions. Minimal notice of industrial action probably maximises disruptive effect. It is said that the contraventions "were in manifest defiance of the law". That may be so. However the statement of agreed facts demonstrates that neither Mr Powell nor Mr McDonald directly instigated any discussion concerning strike action. It may be that they deliberately created a situation from which such action was calculated to emerge, but there is no evidence to that effect. |
10,977 | Case11086 | referred to | Repatriation Commission v Bey (1997) 79 FCR 364 | As the language of s 120(3) makes clear, and as the High Court emphasised in Repatriation Commission v Owens (1996) 70 ALJR 904 at 904, the question whether a reasonable hypothesis is raised is to be determined on a consideration of the whole of the material before the decision-maker: see also Repatriation Commission v Bey (1997) 79 FCR 364 at 367. A reasonable hypothesis within s 120(3) of the VE Act is a hypothesis that is pointed to by the material before the decision-maker, and not merely left open (or not excluded) by that material. A hypothesis that is not pointed to, but is a matter of assertion or is merely left open by the material, is not a reasonable hypothesis: see East v Repatriation Commission (1987) 16 FCR 517 at 532-533. See also Repatriation Commission v Bey (1997) 79 FCR 364 at 366-367, 372-373; Bull v Repatriation Commission (2001) 188 ALR 756 at [18] and [41]. |
2,202 | Case2224 | cited | Makhoul v Barnes (1995) 60 FCR 572 | In any event, the issue identified above is a question of law capable of being addressed on the evidence that was adduced before the Federal Magistrate. It does not appear that it was argued before his Honour that the dismissal by a Registrar of Mr Murdaca's application to have the bankruptcy notice set aside placed any impediment in the way of his challenging the alleged act of bankruptcy on which the creditor's petition was founded ( Makhoul v Barnes (1995) 60 FCR 572). |
5,384 | Case5439 | referred to | Re ACM Gold Ltd (1992) 34 FCR 530 | By making the order that a meeting of members be convened to consider the proposed arrangement, the Court did no more than indicate that it was satisfied that the proposed arrangement outlined in the explanatory statement warranted consideration by members and the exercise of their commercial judgment, and that if the resolution proposed to be put at the meeting was passed by the majorities prescribed by s 411(4)(a)(ii) of the Act such a decision by the members could support an order by the Court that the proposed arrangement be approved. (See: Re ACM Gold Ltd (1992) 34 FCR 530 per O'Loughlin J at 535). 12 The requirement of s 411(17)(a) of the Act that the Court be satisfied that the arrangement has not been proposed for the purpose of enabling the takeover provisions of Ch 6 of the Act to be avoided, obliged the Court to consider whether a "break fee" of $2,600,000.00 that the directors of the plaintiff had bound the plaintiff to pay to IAMGOLD if another offer to buy the shares of the plaintiff caused the members to reject the proposed arrangement, could have affected the market in the plaintiff's shares and have infringed the spirit of the provisions of Ch 6 of the Act . Section 602 of the Act provides that it is a purpose of Ch 6 to ensure that acquisition of control over the voting shares of a corporation "takes place in an efficient, competitive and informed manner". (See: Re Northumberland Insurance Co Ltd (No 3) (1977) 3 ACLR 15). Observations on such a question are made in ASIC Policy Statements PS 60 (at 60.1 60.10) and PS 142 (at 142.18 142.19). In the absence of any relevant evidence, and on the assumption that ASIC has given due consideration to the question and has not elicited any material relevant to the purpose of the proposal that should be put before the Court, the Court may be satisfied that the purpose of IAMGOLD in participating in the proposed arrangement was to implement a merger with the plaintiff in the most efficient way and not to avoid the provisions of Ch 6. (See: Re ACM Gold Ltd per O'Loughlin J at 535-543). |
6,876 | Case6941 | cited | Burgess v Burgess (1853) 22 LJ Ch 675 | For over 150 years it has been the law that "nobody has any right to represent his goods as the goods of somebody else" per Turner LJ in Burgess v Burgess (1853) 22 LJ Ch 675 ; 3 De GM&G 896 at 904; [43] ER 351 at 354: AG Spalding & Bros v AW Gamage Ltd (1915) 84 LJ Ch 449 per Lord Parker of Waddington (with whom Viscount Haldane LC, Lord Atkinson and Lord Sumner concurred): Angelides 40 CLR at 81 per Rich and Starke JJ. |
13,160 | Case13280 | considered | Riddle v Riddle [1952] HCA 12 ; (1952) 85 CLR 202 | The genesis of this provision was s 57 of the Trustee Act 1925 (UK) which is in substantially the same terms. In Riddle v Riddle [1952] HCA 12 ; (1952) 85 CLR 202 the High Court considered the scope of the power of s 81 of the Trustee Act 1925 (NSW) which is in similar terms to the Victorian Act. The majority of the High Court construed s 81 in very wide terms. Dixon J said at 214: "Section 81 is a provision conferring very large and important powers upon the Court which depend upon the Court's opinion of what is expedient, a criterion of the widest and most flexible kind. ... I do not think that the powers given by s. 81 were intended to be restricted by any implications." Williams J said at 220: "The section is couched in the widest possible terms. The sole question is whether it is expedient in the interest of the trust property as a whole that such an order should be made." and at 222: "The one and only test is the expediency of the act or thing which the Court is asked to authorise a trustee to do or abstain from doing. The Court has only to be of the opinion that the trust property as a whole will in fact benefit from the making of the order." ( Riddle v Riddle (supra) was subsequently applied in Re Baker [1961] VR 641 and Arakella v Paton [2004] NSWSC 13 ; (2004) 60 NSWLR 334). |
16,705 | Case16838 | applied | VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 | argument not raised at first instance may be raised on appeal where " it is expedient in the interests of justice to do so ": VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158. Kiefel, Weinberg and Stone JJ there concluded: [46] In our view, the application for leave to rely upon the sole ground of appeal now raised should be refused. Leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so [references omitted]. [47] In Coulton v Holcombe [1986] HCA 33 ; (1986) 162 CLR 1 , Gibbs CJ, Wilson, Brennan and Dawson JJ observed, in their joint judgment, at 7: It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish. [48] The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused. In our view, the proposed ground of appeal has no merit. There is no justification, therefore, for permitting it to be raised for the first time before this Court. " To allow too readily the running of new points, or indeed a whole new case, on appeal is to undermine the appellate process by rendering the trial process almost irrelevant ": WAJR v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 106 at [19] , [2004] FCA 106 ; 204 ALR 624 at 629 per French J (as His Honour then was). See also: SZIHX v Minister for Immigration and Citizenship [2007] FCA 1295 at [16] to [17] per Lander J. |
21,823 | Case22020 | cited | Chacmol Holdings Pty Ltd v Handberg [2005] FCAFC 40 ; (2005) 215 ALR 748 | It is well established that what was said and done by parties to an agreement is part of the relevant context in which an agreement is construed: Codelfa Construction Pty Ltd v State Rail Authority (NSW) [1982] HCA 24 ; (1982) 149 CLR 337 , 348-53 (per Mason J) and Royal Botanic Gardens and Domain Trust v South Sydney City Council [2001] FCA 760 ; (2002) 76 ALJR 436 ; see also Chacmol Holdings Pty Ltd v Handberg [2005] FCAFC 40 ; (2005) 215 ALR 748 at [32] (per Tamberlin J) and [68]-[77]; Chitty on Contracts, 27th ed, Sweet & Maxwell, London, 1994 at [12057]; and McVeigh, In the Matter of Piccolo v National Bank of Australia [2000] FCA 187 at [30] (per Finkelstein J) and at [68] (per Kenny J) and Manks v Whiteley [1912] 1 Ch 735, 754 (per Fletcher-Moulton LJ). 92 Furthermore, even if the preamble's identification of the parties was uncertain or ambiguous, cl 1 of the Heads of Agreement clearly states that "WRVM and MS" will form the joint venture, and cl 2 identifies AVS as the Salvo entity that will discharge the Westpac debt, loan money to WRVM, etc. To the extent that there is any inconsistency between the recitals and the operative portion of the contract, the operative portion controls: Harpur v Levy (2007) 16 VR 587 at [63] and Chacmol Holdings Pty Ltd v Handberg (as administrator of Australian Risk Analysis Pty Ltd) [2005] FCAFC 40 ; (2005) 215 ALR 748 at [39] - [50] , [105] and [106]. The same analysis applies equally to the Development Agreements. Clause 2 of the Development Agreement states that "WRVM and MS have formed a joint venture" and the same is true of cl 2 of the Second Development Agreement. |
20,468 | Case20654 | cited | Abebe v The Commonwealth (1999) 197 CLR 510 | in relation to this ground of appeal I note that it is for the appellant to make his case to the Tribunal, and not the reverse: Abebe v The Commonwealth (1999) 197 CLR 510 at 576. The third ground of appeal appears to be, to some extent, a variation of the first ground of appeal. In any event, however, it is clear that the Tribunal had provided the appellant with an adequate opportunity to present argument and give oral evidence in that, inter alia : The appellant failed to appear before the Tribunal at the hearing scheduled on 19 February 2008, and the Tribunal was entitled to make a decision without taking any further action to allow or enable the appellant to appear before it: s 426A. No jurisdictional error is identified by this ground of appeal. |
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