mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Pongrass Group Operations Pty Ltd v Lowerpinems Pty Ltd (1994) 15 ACSR 341
Outcome: cited
In support of its submissions on the question of whether there is a serious question to be tried in relation to the application for a stay, counsel for the applicant referred to the decision in Pongrass Group Operations Pty Ltd v Lowerpinems Pty Ltd (1994) 15 ACSR 341. In that case, Sackville J considered the principles applicable where it was proposed that a person who had a prior connection with the company be appointed as liquidator. At page 345, his Honour said: '...a proposal to appoint as a liquidator a person who has had a prior nexus with the relevant company should receive close scrutiny. It is also clear that due recognition should be given to the legitimate fears and perceptions of a substantial body of creditors. In this case, the wishes of Sensor Technologies Pty Ltd, as expressed by Mr Shearer ... should be taken into account. However, in my view, it is necessary to examine the evidence carefully and not to act on fears or suspicions that are not explained or justified by reference to underlying facts. Furthermore, it is relevant, although by no means decisive to take account of the advantages of continuity of administration if they apply in the circumstances of a particular case .' (Emphasis added).
Case: Network Exchange Pty Ltd v MIG Communications Pty Ltd (1994) 13 ACSR 544
Outcome: cited
After giving due consideration to the prior nexus between Ferrier Hodgson and the respondent, His Honour decided that on balance it was not inappropriate that the proposed appointee be appointed as liquidator of the company. Other cases which indicate that it is necessary to look at the particular circumstances of each case before making a decision as to whether there is a reasonable apprehension of a conflict of interest in relation to the appointment of a proposed liquidator include Commonwealth of Australia v Irving (1996) 144 ALR 172; Network Exchange Pty Ltd v MIG Communications Pty Ltd (1994) 13 ACSR 544 and Advance Housing Pty Ltd (In Liq) v Newcastle Classic Developments Pty Ltd (1994) 14 ACSR 230.
Case: Advance Housing Pty Ltd (In Liq) v Newcastle Classic Developments Pty Ltd (1994) 14 ACSR 230
Outcome: cited
After giving due consideration to the prior nexus between Ferrier Hodgson and the respondent, His Honour decided that on balance it was not inappropriate that the proposed appointee be appointed as liquidator of the company. Other cases which indicate that it is necessary to look at the particular circumstances of each case before making a decision as to whether there is a reasonable apprehension of a conflict of interest in relation to the appointment of a proposed liquidator include Commonwealth of Australia v Irving (1996) 144 ALR 172; Network Exchange Pty Ltd v MIG Communications Pty Ltd (1994) 13 ACSR 544 and Advance Housing Pty Ltd (In Liq) v Newcastle Classic Developments Pty Ltd (1994) 14 ACSR 230.
Case: Ayres v Evans (1981) 39 ALR 129; 56 FLR 235
Outcome: cited
No forms of request are prescribed and there are no Regulations or Rules of Court setting out any procedural requirements. The general procedure has a long history (briefly reviewed by Fox J in Ayres v Evans (1981) 39 ALR 129; 56 FLR 235 at 239) but the details have varied over time. The complexities of modern cross-border insolvency make it likely that this beneficial provision will be exercised more in the future than it has been exercised in the past. Jersey is a prescribed country by reason of reg 3.01 of the Bankruptcy Regulations 1996 . Therefore, the Court is obliged to act in aid of, and be auxiliary to, Jersey courts with jurisdiction in bankruptcy (s 29(2)(a) of the Act). A request pursuant to s 29(4) is not limited to the court of a prescribed country. Although there is no requirement to establish that it is likely that the foreign court will honour the request before the court should act under s 29(4) ( Clunies-Ross v Totterdell (1988) 20 FCR 358 at 361), the evidence establishes that the Royal Court of Jersey will so act.
Case: Clunies-Ross v Totterdell (1988) 20 FCR 358
Outcome: cited
No forms of request are prescribed and there are no Regulations or Rules of Court setting out any procedural requirements. The general procedure has a long history (briefly reviewed by Fox J in Ayres v Evans (1981) 39 ALR 129; 56 FLR 235 at 239) but the details have varied over time. The complexities of modern cross-border insolvency make it likely that this beneficial provision will be exercised more in the future than it has been exercised in the past. Jersey is a prescribed country by reason of reg 3.01 of the Bankruptcy Regulations 1996 . Therefore, the Court is obliged to act in aid of, and be auxiliary to, Jersey courts with jurisdiction in bankruptcy (s 29(2)(a) of the Act). A request pursuant to s 29(4) is not limited to the court of a prescribed country. Although there is no requirement to establish that it is likely that the foreign court will honour the request before the court should act under s 29(4) ( Clunies-Ross v Totterdell (1988) 20 FCR 358 at 361), the evidence establishes that the Royal Court of Jersey will so act.
Case: Official Trustee in Bankruptcy v Lyons [2000] FCA 1428 ; (2000) 104 FCR 486
Outcome: distinguished
The application has not been served on any party. In Official Trustee in Bankruptcy v Lyons [2000] FCA 1428 ; (2000) 104 FCR 486 Tamberlin J explained why it will normally be necessary to give notice to a live bankrupt see also Re Hudson (2005) 3 ABC(NS) 350 illustrating the exceptions to that principle. It may be accepted that a similar principle would normally apply in the case of a bankrupt deceased estate where probate has been granted. Even where probate has not been granted there may be occasions where it would be appropriate to serve the next of kin. The present case is somewhat out of the ordinary. The next of kin applied for the administration of the deceased estate in bankruptcy. The wife and children of the deceased are aware of this application and support it. In those circumstances, formal service is not necessary. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles. Associate: Dated: 18 December 2007 Counsel for the Applicant: Mr M Aldridge SC Solicitor for the Applicant: Colin Biggers &amp; Paisley Date of Hearing: 12 December 2007 Date of Order: 12 December 2007 Date of Reasons: 18 December 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/2020.html
Case: Re Hudson (2005) 3 ABC(NS) 350
Outcome: cited
The application has not been served on any party. In Official Trustee in Bankruptcy v Lyons [2000] FCA 1428 ; (2000) 104 FCR 486 Tamberlin J explained why it will normally be necessary to give notice to a live bankrupt see also Re Hudson (2005) 3 ABC(NS) 350 illustrating the exceptions to that principle. It may be accepted that a similar principle would normally apply in the case of a bankrupt deceased estate where probate has been granted. Even where probate has not been granted there may be occasions where it would be appropriate to serve the next of kin. The present case is somewhat out of the ordinary. The next of kin applied for the administration of the deceased estate in bankruptcy. The wife and children of the deceased are aware of this application and support it. In those circumstances, formal service is not necessary. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles. Associate: Dated: 18 December 2007 Counsel for the Applicant: Mr M Aldridge SC Solicitor for the Applicant: Colin Biggers &amp; Paisley Date of Hearing: 12 December 2007 Date of Order: 12 December 2007 Date of Reasons: 18 December 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/2020.html
Case: Re Mann (1887) 13 VLR 590
Outcome: cited
I am satisfied that a request is appropriate in the circumstances. I am satisfied that the form of the request is appropriately specific in accordance with Re Mann (1887) 13 VLR 590. I would leave for another day the question whether that authority should continue to be applied to the provision as now framed. It is not clear to me that a request should not be general in form, the "matter" being the administration of the particular bankrupt estate, leaving it to the foreign court to decide precisely how the assistance might be afforded.
Case: Australian Competition &amp; Consumer Commission v Seven Network Ltd [2007] FCA 1505
Outcome: discussed
Counsel for the applicants referred to a recent decision of the Court concerning s 65A: Australian Competition &amp; Consumer Commission v Seven Network Limited [2007] FCA 1505. It was delivered on 5 October 2007 (the day that the applicants filed and served their submissions in support of this application). It was submitted that, in this decision, Bennett J at [77] and [80] had placed a different construction upon s 65A to that of French J at [42] and that on the construction of the section adopted in the Seven Network decision, it is arguable that the applicants' case has reasonable prospect of success. 31 However, the judgment in Seven Network does not immediately assist the present applicant. In that case, the necessary elements of s 65A(1)(a)(i) and (iii) which in turn lead to a consideration of s 65A(1)(a)(vi) were not in dispute, [70]. Bennett J was concerned with the inter-relationship between the "matter" in s 65(1)(a) and the "contract, arrangement or understanding" in s 65A(1)(a)(vi). 32 That was not the position in this case. French J concluded that the transmission by a freelance journalist of a news article to a newspaper or other media outlet with whom he or she has a contract to supply such services was not a publication of matter " in connection " with the supply of such services. Thus the necessary element under s 65A(1)(a)(i) was held not to have been made out. 33 Nonetheless I propose to grant leave. Section 65A is an important statutory provision. Its interpretation is not without difficulty. Bennett J said, in Seven Network at [92], that the "drafting of the section is not a model of clarity". I respectfully agree. It has ramifications beyond the protection, if any, available to freelance journalists. Its reach ought to be considered by a Full Court. Although I have accorded the matter little weight, I note that an appeal has been lodged in the Seven Network case. To that extent therefore s 65A will be the subject of reconsideration by a Full Court which may then examine the section as a whole. 34 The construction placed on the provision by French J has considerable force. However in all of the circumstances I am persuaded that there is sufficient doubt in respect to the decision to warrant it being reconsidered by the Full Court. Certainly, substantial injustice would follow if leave were refused, assuming the decision to be wrong: Decor Corporation and Another Pty Ltd v Dart Industries Inc (1991) 33 FCR 397.
Case: Decor Corporation and Another Pty Ltd v Dart Industries Inc (1991) 33 FCR 397
Outcome: cited
The construction placed on the provision by French J has considerable force. However in all of the circumstances I am persuaded that there is sufficient doubt in respect to the decision to warrant it being reconsidered by the Full Court. Certainly, substantial injustice would follow if leave were refused, assuming the decision to be wrong: Decor Corporation and Another Pty Ltd v Dart Industries Inc (1991) 33 FCR 397.
Case: Ian Duncan v Secretary, Department of Family and Community Services [2007] FCA 507
Outcome: cited
The judgment, whilst interlocutory, is one on points of substance and not merely practice or procedure. A distinction is drawn between these: Yap v Granich &amp; Associates [2001] FCA 1735 at [6] ; Dunstan v Orr [2007] FCA 873 at [6] ; see also Visy Industries Holdings Pty Limited v Australian Competition and Consumer Commission [2007] FCAFC 147 at [39] per Lander J with Moore J concurring. In a case where judgment has the practical effect of finally determining a party's rights, a prima facie case exists for granting leave to appeal: Ian Duncan v Secretary, Department of Family and Community Services [2007] FCA 507 at [18] .
Case: Dunstan v Orr [2007] FCA 873
Outcome: cited
The judgment, whilst interlocutory, is one on points of substance and not merely practice or procedure. A distinction is drawn between these: Yap v Granich &amp; Associates [2001] FCA 1735 at [6] ; Dunstan v Orr [2007] FCA 873 at [6] ; see also Visy Industries Holdings Pty Limited v Australian Competition and Consumer Commission [2007] FCAFC 147 at [39] per Lander J with Moore J concurring. In a case where judgment has the practical effect of finally determining a party's rights, a prima facie case exists for granting leave to appeal: Ian Duncan v Secretary, Department of Family and Community Services [2007] FCA 507 at [18] .
Case: Yap v Granich &amp; Associates [2001] FCA 1735
Outcome: cited
The judgment, whilst interlocutory, is one on points of substance and not merely practice or procedure. A distinction is drawn between these: Yap v Granich &amp; Associates [2001] FCA 1735 at [6] ; Dunstan v Orr [2007] FCA 873 at [6] ; see also Visy Industries Holdings Pty Limited v Australian Competition and Consumer Commission [2007] FCAFC 147 at [39] per Lander J with Moore J concurring. In a case where judgment has the practical effect of finally determining a party's rights, a prima facie case exists for granting leave to appeal: Ian Duncan v Secretary, Department of Family and Community Services [2007] FCA 507 at [18] .
Case: Abebe v Commonwealth [1999] HCA 14 ; (1999) 197 CLR 510
Outcome: considered
Without further hearing from the appellant, the Tribunal was not satisfied on the very limited material before it that the appellant's claimed political involvement with the Akali Dal Baadal in India or the false charges and attacks on his family that the appellant claimed to have suffered as a result of his political activities were true. These were factual conclusions that were open to the Tribunal. According to the decision in Minister for Immigration &amp; Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 272 the Court cannot review the merits of the Tribunal's decision. Further, there is no error of law, let alone a jurisdictional error, in the Tribunal making a wrong finding of fact: see Abebe v Commonwealth [1999] HCA 14 ; (1999) 197 CLR 510 at 560, [137] .
Case: Minister for Immigration &amp; Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259
Outcome: considered
Without further hearing from the appellant, the Tribunal was not satisfied on the very limited material before it that the appellant's claimed political involvement with the Akali Dal Baadal in India or the false charges and attacks on his family that the appellant claimed to have suffered as a result of his political activities were true. These were factual conclusions that were open to the Tribunal. According to the decision in Minister for Immigration &amp; Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 272 the Court cannot review the merits of the Tribunal's decision. Further, there is no error of law, let alone a jurisdictional error, in the Tribunal making a wrong finding of fact: see Abebe v Commonwealth [1999] HCA 14 ; (1999) 197 CLR 510 at 560, [137] .
Case: S58 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs (2004) 85 ALD 492
Outcome: considered
The real difficulty facing the appellant is that the appellant declined a hearing before the Tribunal. It may have been that he was ill-advised in so acting, but the appellant must accept the consequences of that choice: see S58 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs (2004) 85 ALD 492 at [25]. As was pointed out in SZDXC v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCA 1306 at [16] : The RRT made it pellucidly clear in its letter of 12 March 2004 that it was unable to make a decision in the appellant's favour on the basis of the information before it, and as the Full Court observed in NAVX v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 287 , when the appellant failed to accept the opportunity to elaborate on that information at the scheduled hearing, the inevitable consequence was the rejection of his application.
Case: SZDXC v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCA 1306
Outcome: considered
The real difficulty facing the appellant is that the appellant declined a hearing before the Tribunal. It may have been that he was ill-advised in so acting, but the appellant must accept the consequences of that choice: see S58 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs (2004) 85 ALD 492 at [25]. As was pointed out in SZDXC v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCA 1306 at [16] : The RRT made it pellucidly clear in its letter of 12 March 2004 that it was unable to make a decision in the appellant's favour on the basis of the information before it, and as the Full Court observed in NAVX v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 287 , when the appellant failed to accept the opportunity to elaborate on that information at the scheduled hearing, the inevitable consequence was the rejection of his application.
Case: Hamdan v Ramsfeld 126 S.Ct. 2749 (2006)
Outcome: cited
In recent times, challenges to certain US government actions at Guantanamo Bay have centred on appeals as to the lawfulness of the laws rather than their lawful application ( Hamdan v Ramsfeld 126 S.Ct. 2749 (2006)).
Case: Marbury v Madison 5 U.S. 137 (1803)
Outcome: cited
Section 75(v) appears in the Australian Constitution as a consequence of the finding by the Supreme Court in the United States in Marbury v Madison 5 U.S. 137 (1803). Sir Edmund Barton (later an original judge of the High Court) in the debates of the Australasian Federal Convention in Melbourne in 1898 ("Official Record of the Debates of the Australasian Federal Convention", Melbourne , 4 March 1898 Vol II at page 1883) referred to the terms of section 2 of Article III of the United States Constitution . After referring to Marbury v Madison , Sir Edmund said: ...although jurisdiction was given as to cases arising out of the Constitution that itself was only an appellate jurisdiction. Jurisdiction was not given in any express terms as to writs of mandamus, prohibition, or injunction. Therefore there was only an appellate jurisdiction. When the United States Congress tried to confer an original jurisdiction upon the Supreme Court of the United States, it was held that, as there was no such jurisdiction conferred by the Constitution , it could not be conferred by an Act of Congress, because such an Act was outside the Constitution . For that reason, the statute was held to be void. 14 The purpose of s 75(v) in the Australian Constitution was to ensure that, unlike the Supreme Court, the High Court had original jurisdiction in respect of writs of mandamus, prohibition or injunction. 15 Sir Edmund said, at p 1884: This will give the High Court original jurisdiction, as well as appellate jurisdiction, in these cases, so that when a person wishes to obtain the performance of a clear statutory duty, or to restrain an officer of the Commonwealth from going beyond his duty, or to restrain him in the performance of some statutory duty from doing some wrong, he can obtain a writ of mandamus, a writ of prohibition, or a writ of injunction.
Case: Re Patterson; Ex parte Taylor [2001] HCA 51 ; (2001) 182 ALR 657
Outcome: applied
Gaudron J said in Re Patterson; Ex parte Taylor [2001] HCA 51 ; (2001) 182 ALR 657 at [82] - [83] : A decision-maker falls into jurisdictional error if he or she misunderstands the nature of the jurisdiction to be exercised, misconceives his or her duty, fails to apply himself or herself to the question to be decided or misunderstands the nature of the opinion which he or she is to form. ... ... the parliamentary secretary misunderstood the nature of the jurisdiction she was exercising by failing to appreciate that there would, in effect, be no opportunity for Mr Taylor to seek revocation of her decision.
Case: Sunday Times v United Kingdom (1979) 2 EHRR 245
Outcome: cited
The European Court of Human Rights said in Sunday Times v United Kingdom (1979) 2 EHRR 245 at 271, [49]: The law must be adequately accessible: the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case ... a norm cannot be regarded as a 'law' unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able if need be with appropriate advice to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. 43 The third sub-rule advanced by Lord Bingham at 25 was that: ... the laws of the land should apply equally to all, save to the extent that objective differences justify differentiation. ... While some special legislative provision can properly be made for some categories of people such as children, prisoners and the mentally ill, based on the peculiar characteristics of such categories, we would regard legislation directed to those with red hair (to adapt Warrington LJ's long-lived example) as incompatible with the rule of law.
Case: Short v Poole Corporation [1926] Ch 66
Outcome: cited
Warrington LJ said in Short v Poole Corporation [1926] Ch 66 at 91: It may be also possible to prove that an act of the public body, though performed in good faith and without the taint of corruption, was so clearly founded on alien and irrelevant grounds as to be outside the authority conferred upon the body, and therefore inoperative. It is difficult to suggest any act which would be held ultra vires under this head, though performed bona fide. To look for one example germane to the present case, I suppose that if the defendants were to dismiss a teacher because she had red hair, or for some equally frivolous and foolish reason, the Court would declare the attempted dismissal to be void. My view then is that the only case in which the Court can interfere with an act of a public body which is, on the face of it, regular and within its powers, is when it is proved to be in fact ultra vires, and that the references in the judgments in the several cases cited in argument to bad faith, corruption, alien and irrelevant motives, collateral and indirect objects, and so forth, are merely intended when properly understood as examples of matters which if proved to exist might establish the ultra vires character of the act in question. 238 Further, if the discretion to cancel a visa holder's visa were to be enlivened on the basis of a perfectly innocent association with a person who had engaged in criminal activity, the position is not much different from the exercise of a power conditioned on the circumstance that a person had red hair, in the celebrated example of Warrington LJ in Short v Poole Corporation [1926] Ch 66. 239 It is no answer to this criticism of the Chan test that the Minister's power, if conditioned on such a premise, could be expected to be exercised only in those circumstances where the Minister thought it appropriate to exercise the power. The exercise of a power conditioned on such an consideration would be an exercise of power alien to the object of the purposes of the Migration Act .