Datasets:

mdroth
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huggingface-course_section-5_zst

Tasks:

Text Classification

Languages: English

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An error occurred while generating the dataset All the data files must have the same columns, but at some point there are 2 new columns (target, abstract_text) and 3 missing columns (case_text, case_outcome, case_title). This happened while the json dataset builder was generating data using /storage/hf-datasets-cache/medium/datasets/55461325637349-config-parquet-and-info-mdroth-huggingface-course-7e5f2b19/downloads/2650e2ae28467bfd6370407531c768c2d92bae1aea2604e85a635386028b4294 Please either edit the data files to have matching columns, or separate them into different configurations (see docs at https://hf.co/docs/hub/datasets-manual-configuration#multiple-configurations)

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Hugging Face course section 5 .zst datasets

You can use these datasets for whatever you want (note the Apache 2.0 license, though) but their primary purpose is to serve as a drop-in replacement for the sub-datasets of The Pile used in section 5 of the HuggingFace course.

Data sources

PubMed-200k-RTC:
https://www.kaggle.com/datasets/matthewjansen/pubmed-200k-rtc/download?datasetVersionNumber=5
LegalText-classification:
https://www.kaggle.com/datasets/shivamb/legal-citation-text-classification/download?datasetVersionNumber=1

These are Kaggle datasets. So you need to be logged into a Kaggle account to download them from Kaggle. However, you actually don't need to download (and preprocess) them from Kaggle – you can just use them as shown in the following Usage section.

Usage

To load a dataset from this repo, run

import zstandard
from datasets import load_dataset
load_dataset("json", data_files=url, split="train")

where url should be one of the following download links:

LegalText-classification_train.jsonl.zst:
https://huggingface.co/datasets/mdroth/PubMed-200k-RTC/resolve/main/data/LegalText-classification_train.jsonl.zst,
LegalText-classification_train_min.jsonl.zst:
https://huggingface.co/datasets/mdroth/PubMed-200k-RTC/resolve/main/data/LegalText-classification_train_min.jsonl.zst,
PubMed-200k-RTC_train.jsonl.zst:
https://huggingface.co/datasets/mdroth/PubMed-200k-RTC/resolve/main/data/PubMed-200k-RTC_train.jsonl.zst, or
PubMed-200k-RTC_train_min.jsonl.zst:
https://huggingface.co/datasets/mdroth/PubMed-200k-RTC/resolve/main/data/PubMed-200k-RTC_train_min.jsonl.zst.

Example:

import zstandard
from datasets import load_dataset
url = "https://huggingface.co/datasets/mdroth/PubMed-200k-RTC/resolve/main/data/LegalText-classification_train_min.jsonl.zst"
load_dataset("json", data_files=url, split="train")

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case_outcome string	case_title string	case_text string
cited	Alpine Hardwood (Aust) Pty Ltd v Hardys Pty Ltd (No 2) [2002] FCA 224 ; (2002) 190 ALR 121	Ordinarily that discretion will be exercised so that costs follow the event and are awarded on a party and party basis. A departure from normal practice to award indemnity costs requires some special or unusual feature in the case: Alpine Hardwood (Aust) Pty Ltd v Hardys Pty Ltd (No 2) [2002] FCA 224 ; (2002) 190 ALR 121 at [11] (Weinberg J) citing Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 at 233 (Sheppard J).
cited	Black v Lipovac [1998] FCA 699 ; (1998) 217 ALR 386	The general principles governing the exercise of the discretion to award indemnity costs after rejection by an unsuccessful party of a so called Calderbank letter were set out in the judgment of the Full Court in Black v Lipovac [1998] FCA 699 ; (1998) 217 ALR 386. In summary those principles are: 1. Mere refusal of a "Calderbank offer" does not itself warrant an order for indemnity costs. In this connection it may be noted that Jessup J in Dais Studio Pty Ltd v Bullet Creative Pty Ltd [2008] FCA 42 said that (at [6]): if the rejection of such an offer is to ground a claim for indemnity costs, it must be by reason of some circumstance other than that the offer happened to comply with the Calderbank principle. 2. To obtain an order for indemnity costs the offeror must show that the refusal to accept it was unreasonable. 3. The reasonableness of the conduct of the offeree is to be viewed in the light of the circumstances that existed when the offer was rejected.
cited	Colgate Palmolive Co v Cussons Pty Ltd (1993) 47 FCR 225	Ordinarily that discretion will be exercised so that costs follow the event and are awarded on a party and party basis. A departure from normal practice to award indemnity costs requires some special or unusual feature in the case: Alpine Hardwood (Aust) Pty Ltd v Hardys Pty Ltd (No 2) [2002] FCA 224 ; (2002) 190 ALR 121 at [11] (Weinberg J) citing Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 at 233 (Sheppard J).
cited	Dais Studio Pty Ltd v Bullett Creative Pty Ltd [2008] FCA 42	The general principles governing the exercise of the discretion to award indemnity costs after rejection by an unsuccessful party of a so called Calderbank letter were set out in the judgment of the Full Court in Black v Lipovac [1998] FCA 699 ; (1998) 217 ALR 386. In summary those principles are: 1. Mere refusal of a "Calderbank offer" does not itself warrant an order for indemnity costs. In this connection it may be noted that Jessup J in Dais Studio Pty Ltd v Bullet Creative Pty Ltd [2008] FCA 42 said that (at [6]): if the rejection of such an offer is to ground a claim for indemnity costs, it must be by reason of some circumstance other than that the offer happened to comply with the Calderbank principle. 2. To obtain an order for indemnity costs the offeror must show that the refusal to accept it was unreasonable. 3. The reasonableness of the conduct of the offeree is to be viewed in the light of the circumstances that existed when the offer was rejected.
cited	Dr Martens Australia Pty Ltd v Figgins Holdings Pty Ltd (No 2) [2000] FCA 602	The preceding general principles inform the exercise of the discretion. That discretion is not to be fettered by transformation of approaches and practices developed through the cases into quasi statutory rules. In John S Hayes & Associates Pty Ltd v Kimberly-Clark Australia Pty Ltd (1994) 52 FCR 201 , Hill J said (at 203): care must be taken not to circumscribe the discretion by reference to closed categories. It is not a necessary condition of the power to award costs that a collateral purpose be shown. The categories warranting the exercise of the discretion are not closed ... See also Goldberg J in Dr Martens Australia Pty Ltd v Figgins Holdings Pty Ltd (No 2) [2000] FCA 602 at [15] .
cited	GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd [2003] FCA 688 ; (2003) 201 ALR 55	I accept that the making of a rolled up offer inclusive of costs and interest may detract from the weight to be given to its refusal in the exercise of the discretion. Finn J referred to authorities on the point in GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd [2003] FCA 688 ; (2003) 201 ALR 55 at [34] . His Honour cited single judge decisions to the effect that such offers ought not to be a relevant consideration on the question of costs and would not be considered in the same way as a Calderbank letter. His Honour was invited to depart from that line of first instance authority. However he was not prepared to say it was clearly wrong. Notwithstanding that, in the circumstances of the case he had to decide, his Honour found that: The fact that the offer gave no indication at all of the breakdown ... between the claim, interest and costs blunts significantly the weight to be given the offer. 35 While respecting the general approach to rolled up offers reflected in the cases to which Finn J referred, such approaches cannot be calcified into rules of law which fetter a general discretion. They simply reflect a common sense proposition that generally speaking such an offer is not unreasonably refused. There may, however, be circumstances where a rolled up offer, refused by an applicant who is unsuccessful, may support a claim for indemnity costs.
cited	John S Hayes & Associates Pty Ltd v Kimberly-Clark Australia Pty Ltd (1994) 52 FCR 201	The preceding general principles inform the exercise of the discretion. That discretion is not to be fettered by transformation of approaches and practices developed through the cases into quasi statutory rules. In John S Hayes & Associates Pty Ltd v Kimberly-Clark Australia Pty Ltd (1994) 52 FCR 201 , Hill J said (at 203): care must be taken not to circumscribe the discretion by reference to closed categories. It is not a necessary condition of the power to award costs that a collateral purpose be shown. The categories warranting the exercise of the discretion are not closed ... See also Goldberg J in Dr Martens Australia Pty Ltd v Figgins Holdings Pty Ltd (No 2) [2000] FCA 602 at [15] .
cited	Seven Network Limited v News Limited (2007) 244 ALR 374	On the question of the level of unreasonableness necessary to attract the discretion, I respectfully agree with the comment of Sackville J in Seven Network Limited v News Limited (2007) 244 ALR 374 at [62] questioning the utility of substituting a requirement that rejection be "plainly unreasonable" for the requirement that it be "unreasonable". Given the evaluative character of the judgment involved the addition of the word "plainly" which is itself evaluative, has no useful function. 37 At the time that Sirtex made its offer to UWA the prospect of UWA succeeding against Sirtex depended critically upon: 1. UWA establishing its case against Dr Gray and, in particular, that he had breached his fiduciary duty. 2. UWA establishing that Sirtex was accessorially liable in relation to that breach, a position that depended upon establishing that Sirtex was aware of facts constituting (and which would have indicated to a reasonable person) the breach of fiduciary duties owed by Dr Gray to UWA. 38 It cannot be said that UWA acted unreasonably in proceeding on the basis that it had a reasonable cause of action against Dr Gray. True it is that the case as framed and presented depended upon an important proposition of law as to the existence of an implied term in the contract of Dr Gray's employment with UWA. But the correctness of that proposition had not previously been tested in Australia in circumstances of the kind which arose in this case. This is not a case, in my opinion, in which it is appropriate to take a hindsight test to the facts known to UWA at the time of Sirtex's offer and conclude that it ought to have known that the law was against it. 39 There were of course other hazards in the way of UWA's path to success against Dr Gray and therefore against Sirtex. The question whether the relevant inventions were made while Dr Gray was an employee of UWA was one issue upon which findings adverse to UWA were made on all but the DOX-Spheres technology. There was also a finding adverse to UWA that none of the Sirtex directors, apart from Dr Gray, were on notice of a potential claim. To establish any cause of action against Sirtex based on knowing involvement in his alleged breaches of fiduciary duty would have depended entirely upon his role as a director of Sirtex and whether his knowledge could be attributed to that company. In addition, UWA faced substantial defences by Sirtex based on UWA's delay in commencing proceedings after it first became aware of the facts relevant to its claimed causes of action. 40 The preceding factors may be seen as weighing to some degree in favour of the Sirtex motion. On the other hand the offer came as the trial commenced. That is a factor, given the focus on the trial process which would then have existed, that militates against a finding of unreasonableness on the part of UWA in refusing the offer. That conclusion is not affected by the fact that Sirtex was making a counter-offer. The counter-offer was not a variation on a theme opened by UWA's offers. It was quite different and could have been proposed earlier.
applied	Australian Broadcasting Corporation v O'Neill [2006] HCA 46	recent decision of the High Court in Australian Broadcasting Corporation v O'Neill [2006] HCA 46 clarifies this issue. Gleeson CJ and Crennan J (at [19]), after referring to various cases dealing with the grant of interlocutory injunctions in cases of defamation, formulated the general principles governing the grant of such relief in the following terms: "in all applications for an interlocutory injunction, a court will ask whether the plaintiff has shown that there is a serious question to be tried as to the plaintiff's entitlement to relief, has shown that the plaintiff is likely to suffer injury for which damages will not be an adequate remedy, and has shown that the balance of convenience favours the granting of an injunction."
followed	Hexal Australia Pty Ltd v Roche Therapeutics Inc (2005) 66 IPR 325	Hexal Australia Pty Ltd v Roche Therapeutics Inc (2005) 66 IPR 325, the likelihood of irreparable harm was regarded by Stone J as, indeed, a separate element that had to be established by an applicant for an interlocutory injunction. Her Honour cited the well-known passage from the judgment of Mason ACJ in Castlemaine Tooheys Ltd v South Australia [1986] HCA 58 ; (1986) 161 CLR 148 (at 153) as support for that proposition. Had it not been for the fact that there will be a speedy trial of this matter, which Stone J regarded as a relevant consideration in Hexal v Roche (at [78]), I might have been inclined to grant some, at least, of the orders sought by CSL. I will give the parties an opportunity to be heard in relation to the matter of costs. I certify that the preceding one hundred and seven (107) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg. Associate: Dated: 3 October 2006 Counsel for the Applicant: Mr B.N. Caine SC and Dr W.A. Rothnie Solicitor for the Applicant: Blake Dawson Waldron Counsel for the Respondent: Mr P.W. Collinson SC and Ms H.M.J. Rofe Solicitor for the Respondent: Deacons Date of Hearing: 22 September 2006 Date of Judgment: 3 October 2006 AustLII: Copyright Policy \| Disclaimers \| Privacy Policy \| Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1301.html
cited	Castlemaine Tooheys Ltd v South Australia [1986] HCA 58 ; (1986) 161 CLR 148	Hexal Australia Pty Ltd v Roche Therapeutics Inc (2005) 66 IPR 325, the likelihood of irreparable harm was regarded by Stone J as, indeed, a separate element that had to be established by an applicant for an interlocutory injunction. Her Honour cited the well-known passage from the judgment of Mason ACJ in Castlemaine Tooheys Ltd v South Australia [1986] HCA 58 ; (1986) 161 CLR 148 (at 153) as support for that proposition.
cited	R v McFarlane; Ex parte O'Flannagan and O'Kelly [1923] HCA 39 ; (1923) 32 CLR 518	quia timet proceedings, the court will have regard to the degree of probability of the apprehended injury, the degree of the seriousness of the injury, and the requirements of justice between the parties. In R v McFarlane; Ex parte O'Flannagan and O'Kelly [1923] HCA 39 ; (1923) 32 CLR 518 Isaacs J observed (at 539): "The Court is not entitled to apply the obstacle of injunction to the contemplated action of a co-ordinate branch of the Government unless not only a clear case of illegality, proved to be calculated to result in a clear injury, is established, but also it is shown that by no other means can injury be averted or sufficiently compensated for." Dr I C F Spry, in Equitable Remedies (2001, 6 th ed), comments (at 378) that quia timet injunctions are not granted unless the imminence of the act to be prohibited is sufficiently clearly established to justify the court's intervention. The fact that there is no breach presently occurring may make it more difficult, as a matter of evidence, to establish that there is a sufficient risk of a future injury to justify the immediate grant of an injunction. If, in all the circumstances, the likelihood that an injury will take place is not sufficiently high, quia timet relief will be refused. The applicant will be left either to avail him or herself of such other remedies as may be open, or else to renew his or her application should the likelihood of an injury subsequently increase sufficiently to render equitable intervention appropriate. There is some debate as to whether a greater degree of proof is required in a case involving interlocutory quia timet relief than in a case involving a different kind of injunction. The issue is discussed in Meagher, Gummow & Lehane (at [21-395]), and need not be further canvassed here. It is sufficient to note that, in many cases, it may be more difficult to prove that an apprehended injury will occur than it is to prove that an existing injury will continue.
followed	National Australia Bank v KDS Construction Services Pty Ltd [1987] HCA 65 ; (1987) 163 CLR 668	It was not suggested in this proceeding that, so far as a Commonwealth revenue debt is concerned, there is any express statutory provision which alters the usual position which prevails as between creditor and debtor when a cheque is given in payment of a debt. That usual position was expressed by Mason CJ, Brennan, Deane, Dawson and Toohey JJ in National Australia Bank v KDS Construction Services Pty Ltd [1987] HCA 65 ; (1987) 163 CLR 668 , at 676 to be as follows: Generally speaking, when a cheque is given in payment of a debt, it operates as a conditional payment. The payment is subject to a condition that the cheque be paid on presentation. If it is dishonoured the debt revives. Although it is sometimes said that the remedy for the primary debt is suspended, the suspension is no more than a consequence of the conditional nature of the payment: Tilley v Official Receiver in Bankruptcy [1960] HCA 86 ; (1960) 103 CLR 529 , at pp 532-533, 535-536, 537. The condition is a condition subsequent so that, if the cheque is met, it ranks as an actual payment from the time it was given. Subject to non-fulfilment of the condition subsequent, the payment is complete at the time when the cheque is accepted by the creditor: Thomson v Moyse (1961) AC 967 , at p 1004. 14 It was submitted for the Deputy Commissioner that, in the events which had transpired in this case, that usual position had been altered by the signification by the Deputy Commissioner that he would agree to the dismissal of the winding up application once the proceeds of the cheque had been cleared. It seems to me though that the evidence is more consistent with the Deputy Commissioner's adopting a position which was in accordance with the general position when a cheque is given in payment of a debt. It has been accepted subject to a condition that the cheque would be paid on presentation. Subject to the fulfilment of that condition, payment of the then outstanding amount of the debt due to the Commonwealth and payable to the Commissioner was complete upon the acceptance by the Deputy Commissioner on 10 November 2008 of the cheque then proffered on behalf of Ganter. In this regard, the fact that the proffered cheque was a bank cheque may well have provided a degree of comfort to the Deputy Commissioner in deciding to accept it, but the position would have been the same in law so far as the relationship of debtor and creditor was concerned had the cheque concerned been one where the drawer was other than a bank.
followed	George v Cluning (1979) 53 ALJR 767 (note)	Strictly speaking, a cheque, even a bank cheque, is not a form of legal tender. Subject to some particular contractual or statutory provision, the only forms of legal tender remain Australian notes or, subject to the limits specified, Australian coins see s 36 of the Reserve Bank Act 1959 and s 16 of the Currency Act 1965 respectively. However, in general trade and commerce, as Mason J observed in George v Cluning (1979) 53 ALJR 767 (note) by reference to Canadian authority, a payment by cheque can amount to sufficient payment if not objected to on that account. In this case there was no objection made by the Deputy Commissioner on account of Ganter's endeavouring to settle its indebtedness by the tendering of a cheque only, as I have noted a signification that it was accepted subject to a condition that the cheque would be paid on presentation
followed	Australian Mid-Eastern Club Limited v Yassim (1989) 1 ACSR 399	None of this is to suggest that the Deputy Commissioner was under any obligation to accept the proffered cheque. When the history of Ganter's endeavours to pay the debt after the filing of the winding up application is recalled and that the company was, by operation of s 459C(2)(a) the Corporations Act 2001 presumed to be insolvent the Deputy Commissioner would have been entitled not to accept the cheque. A refusal to accept the cheque would not have eliminated the debt in question: Australian Mid-Eastern Club Ltd v Yassim (1989) 1 ACSR 399 , at 403 (NSWCA); Deputy Commissioner of Taxation v Visidet Pty Ltd [2005] FCA 830 at [3] per Gyles J.
followed	Deputy Commissioner of Taxation v Visidet Pty Ltd [2005] FCA 830	None of this is to suggest that the Deputy Commissioner was under any obligation to accept the proffered cheque. When the history of Ganter's endeavours to pay the debt after the filing of the winding up application is recalled and that the company was, by operation of s 459C(2)(a) the Corporations Act 2001 presumed to be insolvent the Deputy Commissioner would have been entitled not to accept the cheque. A refusal to accept the cheque would not have eliminated the debt in question: Australian Mid-Eastern Club Ltd v Yassim (1989) 1 ACSR 399 , at 403 (NSWCA); Deputy Commissioner of Taxation v Visidet Pty Ltd [2005] FCA 830 at [3] per Gyles J. 21 In my opinion, the date for the determination of standing to apply for the winding up of a company is the date when the application is made. As it was when Motor Terms v Liberty Insurance (supra) was decided, the process for the winding up of a company remains today entirely statutory. By s 459A(1)(b) of the Corporations Act a creditor is one of the persons who may apply for the winding up of a company. The application for the winding up of Ganter was made by the Deputy Commissioner upon the filing of the application in this Court on 20 August 2008. At that time, the Deputy Commissioner was, on any view, a creditor. Like Gyles J in Deputy Commissioner of Taxation v Visidet Pty Ltd (at [5]), I am not persuaded that there is any requirement flowing from the Corporations Act that the applicant must continue to be a creditor at the time when the winding up application is heard. As his Honour there states (ibid), and though it is cited in a number of cases which he notes, the passage from the judgement of Menzies J in Motor Terms v Liberty Insurance (supra) does not support the existence of any such requirement. 22 The true position is that the applicant's status as a creditor at the time when the application was made and the presumption flowing from the company's failure to comply with the terms of a statutory demand are sufficient to give the Court jurisdiction to order the winding up of the company. That was the conclusion reached by Zeeman J in Deputy Commissioner of Taxation v Guy Holdings Pty Ltd (1994) 116 FLR 314 at 318. As did Gyles J in Deputy Commissioner of Taxation v Visidet Pty Ltd (at [6]), I agree with that conclusion. As Zeeman J observed in the Guy Holdings Case (at 320), "in the case of an application under s 459P where the debt the subject of the statutory demand has been paid after the filing of the application, the application ought to be dismissed unless there is established some positive reason that a winding up order ought to be made". His Honour is there referring to the way in which, in those circumstances, the discretion vested in the Court on the hearing of a winding up application by s 467 of the Corporations Act would ordinarily be exercised. 24 In their submissions the solicitors for the company pointed to the observation made by Gyles J in Deputy Commissioner of Taxation v Visidet Pty Ltd (at [8]), "With trading companies the existence of a winding up proceeding is a very serious inhibition and has very serious impacts". I respectfully agree. That is one reason why it behoves a company which wishes to keep trading to pay its debts as they fall due or at least later to comply with the terms of a statutory demand. It is also a reason why, all other things being equal, a Court would be disposed, as a matter of discretion, to dismiss a winding up application if satisfied that the debt owed to the applicant creditor had been paid. Another consideration not to be ignored is the protection of the revenue. Yet another consideration is that Ganter, by its solicitors, initially agreed with the Deputy Commissioner's proposal that on 13 November 2008 the adjournment of the application for one week ought to be sought. A further consideration is the public interest in whether a company which is presumed to be insolvent ought to be permitted to continue to trade or whether it ought to be wound up. 25 Ganter's change of heart as to the course which ought to be taken on 13 November 2008 seems to have been multi-factorial in origin. Inferentially from the submissions made to me and to the District Registrar it was founded upon what I regard as the misapprehension that the payment of an applicant creditor's debt obliged the Court to dismiss a winding up application, as opposed to that being a factor going to discretion. Likewise, it seems to have been grounded on the belief that the acceptance of the bank cheque by the Deputy Commissioner extinguished the debt then and there, as opposed to so doing upon the fulfilment of the condition subsequent of the cheque's being cleared. Further, it seems to have been grounded upon the belief that, the cheque payment having been recorded as a credit on 11 November 2008 in its accounts, the Deputy Commissioner was obliged, as a "model litigant" to agree to the dismissal of the winding up application on 13 November 2008. 26 This, with respect, misapprehends the obligation that falls on those representing the interests of the Crown in civil litigation. One of those interests, and it is a vital interest, is the protection of the revenue. The Deputy Commissioner would certainly have failed in his duty to the Court as a model litigant had the acceptance of the cheque and the terms upon which it had been accepted not been drawn to the Court's attention on 13 November 2008. It was. Especially as matters then stood as to the clearing of the bank cheque and the Deputy Commissioner's knowledge as to the practice of the NAB in relation to the circumstances in which it would not meet a bank cheque and the time within which any such disposition on the part of the bank would usually be signified, it was not unreasonable for the Deputy Commissioner to resist the dismissal of the application that day. The position then to take was a matter for the value judgement of the Deputy Commissioner in the circumstances in the administration of the taxation laws. The entry in the accounts of the ATO had no more than a provisional quality about it.
followed	Deputy Commissioner of Taxation v Guy Holdings Pty Ltd [1994] TASSC 126 ; (1994) 116 FLR 314; (1994) 14 ACSR 580	The true position is that the applicant's status as a creditor at the time when the application was made and the presumption flowing from the company's failure to comply with the terms of a statutory demand are sufficient to give the Court jurisdiction to order the winding up of the company. That was the conclusion reached by Zeeman J in Deputy Commissioner of Taxation v Guy Holdings Pty Ltd (1994) 116 FLR 314 at 318. As did Gyles J in Deputy Commissioner of Taxation v Visidet Pty Ltd (at [6]), I agree with that conclusion. As Zeeman J observed in the Guy Holdings Case (at 320), "in the case of an application under s 459P where the debt the subject of the statutory demand has been paid after the filing of the application, the application ought to be dismissed unless there is established some positive reason that a winding up order ought to be made". His Honour is there referring to the way in which, in those circumstances, the discretion vested in the Court on the hearing of a winding up application by s 467 of the Corporations Act would ordinarily be exercised.
cited	Motor Terms Co Pty Ltd v Liberty Insurance Ltd [1967] HCA 9 ; (1967) 116 CLR 177	Assuming that the Deputy Commissioner ought presently to be regarded as an applicant whose debt has been paid, it does not, with respect, seem to me to follow that the application must therefore necessarily be dismissed. In his judgment in Motor Terms Co Pty Ltd v Liberty Insurance Ltd [1967] HCA 9 ; (1967) 116 CLR 177 , at 194-195, Menzies J, in what is strictly an obiter dictum , opined: In the course of argument upon this appeal, reference was made to the consequence of a petitioning creditor being paid off between the presentation of the petition and the making of an order. That circumstance would not, in my opinion, put an end to the petition nor would it affect the jurisdiction of the court to hear and determine the petition although, of course, in such circumstances proceedings might not be continued and, if they were, the court could, in the exercise of its discretion, refuse to make a winding up order upon the petition of a person not then a creditor. In that same case, Barwick CJ (at 179) also seems to have been of the view that, under the then statutory regime for the winding up of a company, the date for the determination of whether a petitioner was a creditor was the date of presentation of the winding up petition. 21 In my opinion, the date for the determination of standing to apply for the winding up of a company is the date when the application is made. As it was when Motor Terms v Liberty Insurance (supra) was decided, the process for the winding up of a company remains today entirely statutory. By s 459A(1)(b) of the Corporations Act a creditor is one of the persons who may apply for the winding up of a company. The application for the winding up of Ganter was made by the Deputy Commissioner upon the filing of the application in this Court on 20 August 2008. At that time, the Deputy Commissioner was, on any view, a creditor. Like Gyles J in Deputy Commissioner of Taxation v Visidet Pty Ltd (at [5]), I am not persuaded that there is any requirement flowing from the Corporations Act that the applicant must continue to be a creditor at the time when the winding up application is heard. As his Honour there states (ibid), and though it is cited in a number of cases which he notes, the passage from the judgement of Menzies J in Motor Terms v Liberty Insurance (supra) does not support the existence of any such requirement.
referred to	Appellant S395/2002 v Minister for Immigration and Multicultural Affairs; Appellant S396/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 ; (2003) 216 CLR 473	am satisfied that the finding of the third Tribunal that the two appellants are not, and were not, homosexuals was not made in the exercise of honest fact finding, but was deliberately calculated to "get around" difficulties in the factual circumstances of the appellants' case, thrown up by the judgment of the High Court in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs; Appellant S396/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 ; (2003) 216 CLR 473 ( Appellant S395/2002 ). The appellants are Bangladeshi nationals. They came to Australia, arriving on 19 February 1999. They sought protection visas on 4 March 1999, claiming that they were homosexuals who had lived together as a couple since 1994, and that they had been subjected to persecution in Bangladesh because of their homosexuality. A delegate of the Minister for Immigration and Citizenship found, on 23 April 1999, that the applicant born on 1 July 1973 (NAOX, or the younger Bangladeshi), was a "citizen of Bangladesh", accepted "as plausible the applicant's claim that he is a homosexual", but was "unable to accept there is a real chance that he will be persecuted on that ground in Bangladesh". The delegate said: In his circumstances, if he believes that his homosexuality, and his relationship, would not be acceptable to the community in which he is living, it is only reasonable to believe that he should be discreet about such matters. It is important to have regard to the issues before the High Court in Appellant S395/2002 : The [first] Tribunal accepted that the appellants were homosexual, and that homosexual men in Bangladesh are a particular social group for the purposes of the Convention Relating to the Status of Refugees , as amended by the Protocol relating to the Status of Refugees , as amended by the Protocol relating to the Status of Refugees 1967. However, the Tribunal rejected most of the claims made by the appellants as to the persecution they had suffered in Bangladesh, including claims that they had experienced threats and violence over many years. It found that they had not in the past suffered serious harm by reason of their homosexuality, observing that they had "clearly conducted themselves in a discreet manner and there is no reason to suppose that they would not continue to do so if they returned home now". Further: The [Tribunal] rejected their claim to have a well-founded fear of persecution in Bangladesh by reason of their homosexuality. The Tribunal rejected most of their individual claims, but accepted that it was not possible to live openly as a homosexual in Bangladesh. It found, however, that the applicants had "clearly conducted themselves in a discreet manner and there is no reason to suppose that they would not continue to do so if they returned home now". The applicants contended that the Tribunal had erred in law by imposing upon them a requirement that they live discreetly in order to avoid persecution. All the members of the High Court held that the (first) Tribunal: ... had not imposed a requirement that the applicants live discreetly if they returned to Bangladesh. It had made a finding of fact that they would live discreetly. That finding did not itself involve error.
cited	Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518	is plain that, where an order is set aside, and a matter is remitted to the Tribunal for reconsideration, there is nothing on which any issue estoppel can be founded: Morales v Minister for Immigration and Multicultural Affairs [1998] FCA 334 ; (1998) 82 FCR 374 ; Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518. It is perhaps understandable, in the light of the history of the proceedings from the decision of the delegate all the way to the High Court, but very unfortunate, that counsel for the appellants should have sought to argue issue estoppel.
cited	Morales v Minister for Immigration and Multicultural Affairs [1998] FCA 334 ; (1998) 82 FCR 374	is plain that, where an order is set aside, and a matter is remitted to the Tribunal for reconsideration, there is nothing on which any issue estoppel can be founded: Morales v Minister for Immigration and Multicultural Affairs [1998] FCA 334 ; (1998) 82 FCR 374 ; Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518. It is perhaps understandable, in the light of the history of the proceedings from the decision of the delegate all the way to the High Court, but very unfortunate, that counsel for the appellants should have sought to argue issue estoppel.
referred to	Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 ; (2000) 168 ALR 407	J in Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 ; (2000) 168 ALR 407 said, at [67]: ... a finding as to whether the prosecutor should be believed in his claim a finding on credibility ... [is] the function of the primary decision-maker par excellence. If the primary decision-maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence.
cited	TCN Channel Nine Pty Ltd v Australian Broadcasting Tribunal (1992) 28 ALD 829	I find that the decision was perverse to such an extent as to exhibit a serious failure in the decision making process, with the consequences that the decision was so unreasonable that it was beyond power: see TCN Channel Nine Pty Ltd v Australian Broadcasting Tribunal (1992) 28 ALD 829 at 861.
referred to	Waterford v Commonwealth [1987] HCA 25 ; (1987) 163 CLR 54	J, as he then was, said in Waterford v Commonwealth [1987] HCA 25 ; (1987) 163 CLR 54 , at 77: There is no error of law simply in making a wrong finding of fact. A finding, which purports to be a finding of fact, is not rendered immune from judicial examination, if it is not made in good faith, but for an ulterior purpose: in this case, in the light of the remittal to the Tribunal by the High Court, to "get around" the factual findings that had earlier been made, in the enquiry as to whether the appellants were entitled to the issue of protection visas. Whether the decision of the third Tribunal be regarded as unreasonable in the Wednesbury corporation sense, or on the basis that the decision was not made in good faith, or on the basis that there was a lack of impartiality in the fact-finding process, the decision of the third Tribunal has to be set aside.
followed	Elderslie Finance Corp Ltd v Australian Securities Commission (1993) 11 ASCR 157	null
related	Hayes, in the matter of Estate Property Group Limited (Administrators Appointed) [2007] FCA 935	On 15 June 2007 I made orders extending the convening period for the meeting of creditors required to be held under s 439A of the Corporations Act 2001 (Cth) (the Act) to midnight 23 July 2007 in relation to a number of companies, being the members of what is known as the Estate Property Group (the Group), together with some ancillary orders on the application of the administrators of the companies in the Group (the Administrators) ( Hayes, in the matter of Estate Property Group Limited (Administrators Appointed) [2007] FCA 935). In a related application concerning Australian Capital Reserve Limited (Administrators Appointed) (ACR), on 12 June 2007 orders were made extending the "decision period" provided for by s 441A(1)(b) of the Act to the last day of the convening period for a number of companies in the Group ( Australian Capital Reserve Limited (Administrators Appointed) v High Tower Investments Pty Limited (Administrators Appointed); in the matter of High Tower Investments Pty Limited (Administrators Appointed) [2007] FCA 1028). On 13 July 2007 the convening period for the second meeting of creditors of those companies was further extended to midnight on 31 August 2007 utilising the provisions of s 447A(1) of the Act to achieve that result and certain ancillary orders were made. I indicated then that I would give reasons for those orders in due course. These are those reasons. These reasons should be read with those in Hall, in the matter of Australian Capital Reserve Limited (Administrators Appointed) [2007] FCA 1328 to be delivered contemporaneously. The background to these reasons is set out in the various judgments to which I have referred and need not be repeated.
related	Australian Capital Reserve Limited (Administrators Appointed) v High Tower Investments Pty Limited (Administrators Appointed); in the matter of High Tower Investments Pty Limited (Administrators Appointed) [2007] FCA 1028	On 15 June 2007 I made orders extending the convening period for the meeting of creditors required to be held under s 439A of the Corporations Act 2001 (Cth) (the Act) to midnight 23 July 2007 in relation to a number of companies, being the members of what is known as the Estate Property Group (the Group), together with some ancillary orders on the application of the administrators of the companies in the Group (the Administrators) ( Hayes, in the matter of Estate Property Group Limited (Administrators Appointed) [2007] FCA 935). In a related application concerning Australian Capital Reserve Limited (Administrators Appointed) (ACR), on 12 June 2007 orders were made extending the "decision period" provided for by s 441A(1)(b) of the Act to the last day of the convening period for a number of companies in the Group ( Australian Capital Reserve Limited (Administrators Appointed) v High Tower Investments Pty Limited (Administrators Appointed); in the matter of High Tower Investments Pty Limited (Administrators Appointed) [2007] FCA 1028). On 13 July 2007 the convening period for the second meeting of creditors of those companies was further extended to midnight on 31 August 2007 utilising the provisions of s 447A(1) of the Act to achieve that result and certain ancillary orders were made. I indicated then that I would give reasons for those orders in due course. These are those reasons. These reasons should be read with those in Hall, in the matter of Australian Capital Reserve Limited (Administrators Appointed) [2007] FCA 1328 to be delivered contemporaneously. The background to these reasons is set out in the various judgments to which I have referred and need not be repeated.
related	Hall, in the matter of Australian Capital Reserve Limited (Administrators Appointed) [2007] FCA 1328	On 15 June 2007 I made orders extending the convening period for the meeting of creditors required to be held under s 439A of the Corporations Act 2001 (Cth) (the Act) to midnight 23 July 2007 in relation to a number of companies, being the members of what is known as the Estate Property Group (the Group), together with some ancillary orders on the application of the administrators of the companies in the Group (the Administrators) ( Hayes, in the matter of Estate Property Group Limited (Administrators Appointed) [2007] FCA 935). In a related application concerning Australian Capital Reserve Limited (Administrators Appointed) (ACR), on 12 June 2007 orders were made extending the "decision period" provided for by s 441A(1)(b) of the Act to the last day of the convening period for a number of companies in the Group ( Australian Capital Reserve Limited (Administrators Appointed) v High Tower Investments Pty Limited (Administrators Appointed); in the matter of High Tower Investments Pty Limited (Administrators Appointed) [2007] FCA 1028). On 13 July 2007 the convening period for the second meeting of creditors of those companies was further extended to midnight on 31 August 2007 utilising the provisions of s 447A(1) of the Act to achieve that result and certain ancillary orders were made. I indicated then that I would give reasons for those orders in due course. These are those reasons. These reasons should be read with those in Hall, in the matter of Australian Capital Reserve Limited (Administrators Appointed) [2007] FCA 1328 to be delivered contemporaneously. The background to these reasons is set out in the various judgments to which I have referred and need not be repeated.
cited	Australian Securities and Investments Commission, In the Matter of Richstar Enterprises Pty Ltd (ACN 099 071 968) v Carey [2006] FCA 366	On 30 March 2006 Siopis J made interim orders restraining the defendants from removing any of their property from Australia or from otherwise dealing with it except to the extent set out in the order. He also directed the surrender of their passports. His Honour published his reasons for those orders on 5 April 2006 Australian Securities and Investments Commission, In the Matter of Richstar Enterprises Pty Ltd (ACN 099 071 968) v Carey [2006] FCA 366. 16 On 7 April 2006 I made orders extending the operation of the interim injunctions granted by Siopis J (subject to some undisputed variations) until 5pm on 12 April 2006 which was the date set down for the hearing of the substantive application. Following the hearing of the substantive application those orders were further extended to 5pm on Thursday 20 April 2006 subject to further agreed variations. Judgment on the substantive application was reserved to 2.15pm on Thursday 20 April 2006. 17 There was an application made on behalf of the second defendant for an order setting aside the ex parte orders made by Siopis J on the basis that there had not been full disclosure by ASIC of relevant evidence to the Court. The second defendant submitted that ASIC's evidence predominately related to transactions involving other defendants which were not relevant to the second. I am not satisfied that any material non disclosure is shown. In any event the interim freezing orders lapse today.
cited	ASIC v Mauer-Swisse Securities Ltd (2002) 20 ACLC 1530	There is a variety of ways in which the interests of persons, to whom liabilities may be owed, can be protected by orders made under the section. The nature of the protection can vary according to the nature of the risks assessed. As Palmer J said in ASIC v Mauer-Swisse Securities Ltd (2002) 20 ACLC 1530 at [37]: '... there may be evidence to suggest that fraud has been perpetrated on a large scale and that many of the victims have no or little information about the extent of the fraud, no or little means for their own investigations, and no or little resources to prosecute their own claims. In such a case, the interests of such persons are protected, within the contemplation of s 1323, by enabling ASIC to conduct an investigation for the purpose of identifying the wrongdoers and exposing them not only to penalties under the Corporations Act and other legislation, but also to claims for compensation from the victims themselves.' `
cited	CAC v Lone Star Exploration NL (1988) 14 ACLR 499	The orders that can be made under the section are directed, inter alia, to the preservation of assets against which recovery may be sought in the event that liability to an 'aggrieved person' is established on the part of a 'relevant person'. The orders are made in circumstances where 'an investigation is being carried out', 'a prosecution has been begun' or 'a civil proceeding has been begun'. That is to say the orders can be made before liability is established and indeed before the evidence necessary to establish liability has been collected. While an application under the section is not interlocutory in an existing criminal or civil proceeding, it is interlocutory in a wider sense. It preserves the status quo and the assets of the relevant person pending the outcome of the investigation, prosecution or civil proceedings which are on foot CAC v Lone Star Exploration NL( No 2) (1988) 14 ACLR 499 at 504. At the stage an order is sought the Court may not be in a position to identify with precision any particular liability owed by the person the subject of the proposed order. This consideration applies to final orders made under the section as well as to interim orders for which it expressly provides in s 1323(3). The final orders made under the section are necessarily of a temporary or holding character rather than finally disposing of the rights and liabilities of the relevant persons affected by them.
cited	Corporate Affairs Commission v ASC Timber Pty Ltd (1989) 7 ACLC 467	The circumstances in which the Court may make orders under s 1323(1) are wide as indicated by the words 'necessary or desirable ... for the purpose of protecting the interests of a person ...'. There is an element of risk assessment and risk management in the judgment the Court is called on to make. It follows, and has been accepted, that there is no requirement on the part of ASIC to demonstrate a prima facie case of liability on the part of the relevant person or that the person's assets have been or are about to be dissipated Corporate Affairs Commission v ASC Timber Pty Ltd (1989) 7 ACLC 467 at 476 (Powell J); Australian Securities and Investment Commission v Adler (2001) 38 ACSR 266 at [7] (Santow J).
cited	Australian Securities and Investments Commission v Adler (2001) 38 ACSR 266	The circumstances in which the Court may make orders under s 1323(1) are wide as indicated by the words 'necessary or desirable ... for the purpose of protecting the interests of a person ...'. There is an element of risk assessment and risk management in the judgment the Court is called on to make. It follows, and has been accepted, that there is no requirement on the part of ASIC to demonstrate a prima facie case of liability on the part of the relevant person or that the person's assets have been or are about to be dissipated Corporate Affairs Commission v ASC Timber Pty Ltd (1989) 7 ACLC 467 at 476 (Powell J); Australian Securities and Investment Commission v Adler (2001) 38 ACSR 266 at [7] (Santow J).
cited	ASIC v Burke [2000] NSWSC 694	It is not a necessary consequence of an order appointing a receiver that the receiver should deal with or liquidate the assets in question. The interlocutory and protective character of orders made under s 1323 must be borne in mind when defining the powers of the receiver. The appointment of a receiver has rightly been described as 'an extraordinary step' ASIC v Burke [2000] NSWSC 694 at [8] (Austin J). However depending upon the nature of the powers conferred on the receiver it may be less drastic than a freezing order which can only be varied by order of the Court. The interlocutory history of this case has already demonstrated that circumstances not contemplated when the original interim freezing orders were made have required their variation from time to time. I accept, with respect, the observation made by Austin J in Burke at [8]: 'Without wishing to lay down any general rules, it appears to me that the extraordinary step of appointing a receiver may be justified, even though Mareva Orders are in place, in a case where there is real doubt about the existence and location of assets such as investments, and about the number and identity of claimants and the nature of their claims, and additionally the defendants are engaged in business activities which entail that any Mareva Orders must allow assets to be turned over in the course of business. Where these circumstances exist in combination, and especially where there are allegations of serious fraud involved, the Court may conclude ...that the Mareva Orders are not enough to ensure that the assets are preserved and protected, and indeed identified and brought in for the benefit of investors.' The decision was cited with approval by Santow J in ASIC v Adler (supra) at 268-269. 30 Section 1323 does not make any express provision for the nature of the evidence on which the Court may act in making orders under it. Applications made under the section have an interlocutory character albeit there are no other specific proceedings to which they may relate. The section does not require concluded findings of fact about liability or whether assets have been dissipated. For the reasons already canvassed the Court, in making orders under s 1323 , engages in a risk assessment and management process. The logic of the section assumes that the Court will not always have before it evidence of the kind that would be necessary and admissible in proceedings to establish definitively the nature and extent of the assets of the persons under investigation and their liability to aggrieved persons. Nor will it necessarily have before it evidence of the kind that would establish definitively that dissipation of assets has occurred or is likely to occur or that flight is imminent. 31 The logic of s 1323 requires the Court to be able to act on evidence which might not be admissible in civil or criminal proceedings leading to a definitive determination of the rights and liabilities of the parties. Hearsay evidence may therefore be received and acted upon, not as proof of the truth of its content but as evidence of the existence of a risk or possibility that gives rise to the necessity for or desirability of a protective order. It is not necessary, in this context, to consider whether the proceedings are interlocutory for the purposes of the exception to the hearsay rule under s 75 of the Evidence Act 1995 (Cth) albeit that that exception is no doubt informed by similar considerations. Evidence may be received of the opinion of a suitably qualified person who has had the opportunity to review extensive documentation collected in the course of an investigation and to offer an overview of it for the benefit of the Court. In such a case the opinion or overview should be supported by reference to the relevant documentation and factual material. The opinion is received not for the determination of any ultimate issue of liability but as probative of the risk which the Court must assess in determining whether to make an order under the section. These considerations are relevant to the admissibility of some of the affidavit evidence which has been relied upon in this case. 32 Specific objection has been taken on behalf of the second defendant to the use of transcripts of examinations conducted under s 19 of the ASIC Act. It was submitted that pursuant to s 68(3) of the ASIC Act such transcripts are not admissible in evidence against the person who has signed the record in a proceeding for the imposition of a penalty. It was submitted that the present proceedings are, in truth, proceedings for the imposition of a penalty. This is on the basis that if interlocutory in nature, then they are interlocutory in respect of proceedings not yet commenced but which will inevitably be penalty proceedings. 33 Accepting that there is a possibility that penalty proceedings may be taken against one or more of the defendants in this case that does not, in my opinion, render the present application an application for the imposition of a penalty or an application incidental to such proceeding. As already noted, evidence may be relied upon of a hearsay or opinion character in these proceedings which might not be admissible in penalty proceedings. The same is true for s 19 transcripts. 34 It was submitted for the second defendant that because ASIC seeks an order that the reasonable costs of the receivers and managers whose appointment it seeks should be payable from the collective assets of the defendants, that fact itself gives the present application the character of a penalty proceeding. In my opinion however, the submission is misconceived. An order for the payment of costs out of the collective assets of the defendants would not of itself amount to the imposition of a penalty. Although it may effectively deprive defendants of some of their property that imposition is not by way of punishment for any contravention of the law. 35 Objection was also taken to the admissibility against the second defendant of transcripts of examinations of other parties conducted under s 19 of the ASIC Act. In this respect s 77 of the ASIC Act was relied upon. That section provides: 'Where direct evidence by a person (the absent witness ) of a matter would be admissible in a proceeding, a statement that the absent witness made at an examination of the absent witness and that tends to establish that matter is admissible in the proceeding as evidence of that matter: (a) if it appears to the court or tribunal that: (i) the absent witness is dead or is unfit, because of physical or mental incapacity, to attend as a witness; or (ii) the absent witness is outside the State or Territory in which the proceeding is being heard and it is not reasonably practicable to secure his or her attendance; or (iii) all reasonable steps have been taken to find the absent witness but he or she cannot be found; or (b) if it does not so appear to the court or tribunal unless another party to the proceeding requires the party tendering evidence of the statement to call the absent witness as a witness in the proceeding and the tendering party does not so call the absent witness.' It was submitted for the second defendant that ASIC has not adduced evidence in respect of the matters set out in s 77(a) and that therefore the s 19 transcripts of those parties that are not parties to the proceeding may only be tendered if the conditions set out in par (a) are set out. Counsel for ASIC on the other hand submitted that the second defendant had not required ASIC to call any absent witness as a witness in the proceeding and that therefore the condition of admissibility under s 77(b) of the Act was satisfied. Given the urgency with which the application has been made, it is perhaps a little unrealistic to require advance notice by the second defendant of the requirement that any absent witness whose s 19 transcript is relied upon be called as a witness in the proceeding. In my opinion, however, the transcripts of the examinations conducted under s 19 can be relied upon as tending to establish the possibility that circumstances exist which give rise to the necessity or desirability of a protective order. What is in evidence here is the fact that the statement was made in the course of a s 19 examination. The fact that the statement was made, rather like the hearsay evidence referred to earlier, may support an inference that circumstances exist that make a protective order necessary or desirable. It is not necessary to rely upon such evidence for the purpose of establishing the truth of the statement made.
considered	Australian Securities and Investments Commission v Pegasus Leveraged Options Group Pty Ltd (2002) 41 ACSR 561	In Australian Securities and Investments Commission v Pegasus Leveraged Options Group Pty Ltd (2002) 41 ACSR 561 at 574 (" Pegasus "), Davies AJ addressed the question whether the sole director of the company which promoted and operated a managed investment scheme should also be considered to be a person operating the scheme. His Honour said at [55]-[57]: "The word 'operate' is an ordinary word of the English language and, in the context, should be given its meaning in ordinary parlance. The term is not used to refer to ownership or proprietorship but rather to the acts which constitute the management of or the carrying out of the activities which constitute the managed investment scheme. The Oxford English Dictionary gives these relevant meanings: 5. To effect or produce by action or the exertion of force or influence; to bring about, accomplish, work. 6. To cause or actuate the working of; to work (a machine, etc). Chiefly U.S. 7. To direct the working of; to manage, conduct, work (a railway, business, etc); to carry out or through, direct to an end (a principle, an undertaking, etc) orig. U.S. I have concluded that Mr McKim operated the managed investment scheme. He was the living person who formulated and directed the scheme and he was actively involved in its day to day operations. He supervised others in their performance. I have also concluded that Mr McKim is not exempted by s601ED(6). He did not 'merely' act as agent or employee of Pegasus. He was the directing mind and will of Pegasus and of the scheme." 35 Mansfield J reached a similar conclusion in Australian Securities and Investments Commission v McNamara (2002) 42 ACSR 488. In that case, the individual in question was one of the directors of the company managing the scheme. His Honour found that the person in question formulated and directed the scheme, and was actively involved in its day to day operations as the directing mind and will of the company managing the scheme. Accordingly, he was operating the scheme in contravention of s 601EB(5). In making these findings, Mansfield J approved the passage in Pegasus to which I have referred. 55 Since Australian Softwood Forest Pty Ltd v Attorney-General (NSW ) [1981] HCA 49 ; (1981) 148 CLR 121, esp at 125, the courts have recognised that the grant of declaratory relief on the application of a statutory body such as ASIC may serve important law enforcement purposes: see Corporate Affairs Commission (NSW) v Transphere Pty Ltd (1988) NSWLR 596 at 603; Australian Securities and Investments Commission v Sweeney [2001] NSWSC 114 at [30] - [31] ; and Pegasus at 571. ASIC is charged with the administration and enforcement of the Act , and there will be many cases where it is in the public interest for the courts to make a declaration on ASIC's application that the Act has been contravened in specified respects. The making of such a declaration does not simply record the outcome of enforcement proceedings; it may also be an appropriate way of marking the court's disapproval of the contravening conduct: see Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (No 2) (1993) 41 FCR 80 at 97-99, 106 and 110. 77 ASIC does not seek an order that BTS be wound up, even though there is some evidence that it might be insolvent. In many cases, it may be appropriate, and it may further investor protection, to make winding up orders in respect of both the unregistered managed investment scheme and the company which administered the scheme: see Pegasus at 579-580, at [95] [98]. Indeed, in Australian Securities and Investment Commission v Chase Capital Management Pty Ltd (2001) 36 ACSR 778 at 796, Owen J said at [93] that if an unregistered scheme is to be wound up, the case for a liquidation of the company that conducted it is compelling.
cited	Australian Securities and Investments Commission v McNamara (2002) 42 ACSR 488	Mansfield J reached a similar conclusion in Australian Securities and Investments Commission v McNamara (2002) 42 ACSR 488. In that case, the individual in question was one of the directors of the company managing the scheme. His Honour found that the person in question formulated and directed the scheme, and was actively involved in its day to day operations as the directing mind and will of the company managing the scheme. Accordingly, he was operating the scheme in contravention of s 601EB(5). In making these findings, Mansfield J approved the passage in Pegasus to which I have referred. 74 In ASIC v Takaran Pty Ltd (No 2) (2003) 194 ALR 743 at 747-748, at [15], Barrett J made the following observation, with which I agree: "The fact that a scheme is being operated by its existing operators in contravention of statute activates a public interest in favour of not only its being wound up under s 601EE ( Australian Securities and Investments Commission v McNamara (2002) 42 ACSR 488) but also 'ensuring the transparency of the winding up process and the safeguarding of the rights of the contributories' by committing the winding up to an independent party ( Bells Securities Pty Ltd v LPG Mourant [2002] QSC 156 ; BC200202989 per Wilson J; see also Australian Securities and Investments Commission v Product Management Group Pty Ltd (2002) 42 ACSR 343)."
cited	Australian Securities and Investments Commission v Giann & Giann Pty Ltd [2005] FCA 81 ; (2005) 141 FCR 278	Numerous cases have held that s 911A of the Act extends to a company director who conducts or is involved in a company's carrying on of a financial services business without an Australian financial services licence: see Australian Securities and Investments Commission v Giann & Giann Pty Ltd [2005] FCA 81 ; (2005) 141 FCR 278; Australian Securities and Investments Commission v Manito Pty Ltd (2005) 53 ACSR 56; Australian Securities and Investments Commission v Drury Management Pty Ltd [2004] QSC 68.
cited	Australian Securities and Investments Commission v Manito Pty Ltd (2005) 53 ACSR 56	Numerous cases have held that s 911A of the Act extends to a company director who conducts or is involved in a company's carrying on of a financial services business without an Australian financial services licence: see Australian Securities and Investments Commission v Giann & Giann Pty Ltd [2005] FCA 81 ; (2005) 141 FCR 278; Australian Securities and Investments Commission v Manito Pty Ltd (2005) 53 ACSR 56; Australian Securities and Investments Commission v Drury Management Pty Ltd [2004] QSC 68.
cited	Australian Securities and Investments Commission v Drury Management Pty Ltd [2004] QSC 68	Numerous cases have held that s 911A of the Act extends to a company director who conducts or is involved in a company's carrying on of a financial services business without an Australian financial services licence: see Australian Securities and Investments Commission v Giann & Giann Pty Ltd [2005] FCA 81 ; (2005) 141 FCR 278; Australian Securities and Investments Commission v Manito Pty Ltd (2005) 53 ACSR 56; Australian Securities and Investments Commission v Drury Management Pty Ltd [2004] QSC 68.
cited	Ainsworth v Criminal Justice Commission [1992] HCA 10 ; (1992) 175 CLR 564	In Ainsworth v Criminal Justice Commission [1992] HCA 10 ; (1992) 175 CLR 564, at 581-582, Mason CJ, Dawson, Toohey and Gaudron JJ said that superior courts have inherent power to grant declaratory relief. Their Honours added that it is a discretionary power which it is neither possible nor desirable to fetter by laying down rules as to the manner of its exercise, although it must be recognised that it is a power confined by the considerations which mark out the boundaries of judicial power. In the same case, Brennan J emphasised that the making of a declaration, and the terms in which it is to be made, are in the court's discretion: at 596.