mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Dovuro Pty Limited v Wilkins [2003] HCA 51 ; (2003) 215 CLR 317
Outcome: applied
The critical consideration when determining an application to split a trial is whether splitting the trial will result in 'savings in time and expense' (see Tepko Pty Limited v Water Board [2001] HCA 19 ; (2001) 206 CLR 1 at [168] per Kirby and Callinan JJ and Dovuro Pty Limited v Wilkins [2003] HCA 51 ; (2003) 215 CLR 317 (' Dovuro ') at [142] per Hayne and Callinan JJ) such that it is 'just and convenient' for the order to be made; see also Reading Australia Pty Ltd v Australian Mutual Provident Society (1999) 217 ALR 495 at [9] per Branson J. 10 This is not an appropriate case to split the trial in the manner proposed by the first applicant and the second applicants (other than Kids Holdings Pty Ltd). There is no evidence that any significant time and expense will be saved by the Court granting the application. The first applicant and the second applicants (other than Kids Holdings Pty Ltd) have not discharged the onus of proving that the course proposed is just or convenient so as to displace the usual position that all issues and questions in a trial should be dealt with at the same time. Further, as counsel for Colliers submitted, in cases such as this, where claims in the accrued jurisdiction include negligence, it is not desirable to split the question of liability from the question of quantum; see Dovuro [2003] HCA 51 ; 215 CLR 317 at [142] . 11 The first applicant and the second applicants (other than Kids Holdings Pty Ltd) and Colliers have each raised competing claims about the utility of determining separately the quantum of the second applicants' claims, if they succeed on liability. It is not necessary to resolve that debate now because I do not consider that there would be any significant saving of time and expense in the course proposed by Mr Solomon's clients. 12 The application for an order under O 29 r 2 is dismissed. The respondent should have its costs of, and incidental to, that application. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall. Associate: Dated: 12 April 2007 Counsel for the Applicants (other than Kids Holding Pty Ltd): Mr D H Solomon Solicitors for the Applicants (other than Kids Holding Pty Ltd): Solomon Brothers Counsel for Mr G Carrello: Mr C Cobby Solicitors for Mr G Carrello: Christensen Vaughan Counsel for the Respondent: Dr J T Schoombee Solicitors for the Respondent: Downings Legal Date of Hearing: 12 April 2007 Date of Judgment: 12 April 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/531.html
Case: Liberty Financial Pty Ltd v Scott [2003] FCA 226
Outcome: followed
The premise which underlies the general course of not splitting trials is that 'it is ordinarily appropriate that all issues in a proceeding be disposed of at the one time'; see Liberty Financial Pty Ltd v Scott [2003] FCA 226 (' Liberty Financial ') at [35]. 'It is incumbent upon the applicant [for the O 29 r 2 order] to show why there should be a departure from that course'; see Liberty Financial [2003] FCA 226 at [35] per Weinberg J.
Case: Reading Australia Pty Ltd v Australian Mutual Provident Society (1999) 217 ALR 495
Outcome: followed
The critical consideration when determining an application to split a trial is whether splitting the trial will result in 'savings in time and expense' (see Tepko Pty Limited v Water Board [2001] HCA 19 ; (2001) 206 CLR 1 at [168] per Kirby and Callinan JJ and Dovuro Pty Limited v Wilkins [2003] HCA 51 ; (2003) 215 CLR 317 (' Dovuro ') at [142] per Hayne and Callinan JJ) such that it is 'just and convenient' for the order to be made; see also Reading Australia Pty Ltd v Australian Mutual Provident Society (1999) 217 ALR 495 at [9] per Branson J.
Case: Save the Ridge Inc v Commonwealth [2005] FCAFC 203 ; (2005) 147 FCR 97
Outcome: cited
The course proposed by the first applicant and the second applicants (other than Kids Holdings Pty Ltd) is unusual. It is not uncommon for a trial to be split so that liability is determined before quantum, damages or compensation. But it is unusual for a trial to be split so that one applicant does not have the trial split with respect to its claim, while splitting the trial with respect to the other applicants' claims. These circumstances alone do not dictate that the trial should not be split. However, the Court must tread warily in this area. As Black CJ and Moore J said in Save the Ridge Inc v Commonwealth [2005] FCAFC 203 ; (2005) 147 FCR 97 at [15] : 'The formulation of separate or preliminary questions is authorised by O 29, r 2 of the Federal Court Rules 1979 (Cth). But it is a procedure that should be adopted with caution and can be fraught with difficulties.'
Case: Tepko Pty Limited v Water Board [2001] HCA 19 ; (2001) 206 CLR 1
Outcome: applied
The critical consideration when determining an application to split a trial is whether splitting the trial will result in 'savings in time and expense' (see Tepko Pty Limited v Water Board [2001] HCA 19 ; (2001) 206 CLR 1 at [168] per Kirby and Callinan JJ and Dovuro Pty Limited v Wilkins [2003] HCA 51 ; (2003) 215 CLR 317 (' Dovuro ') at [142] per Hayne and Callinan JJ) such that it is 'just and convenient' for the order to be made; see also Reading Australia Pty Ltd v Australian Mutual Provident Society (1999) 217 ALR 495 at [9] per Branson J.
Case: Unity Insurance Brokers Pty Limited v Rocco Pezzano Pty Limited (1998) 193 CLR 603
Outcome: cited
The primary reason for this application concerns an agreement between the liquidator of Meadow Springs and a receiver and manager (Mr G Carrello) purportedly appointed by a creditor about the representation of Meadow Springs at the trial. That agreement is conditional on this application being granted. Dismissal of this application, in the absence of successful mediation of that issue, would require the Court to determine the competing claims of the liquidator and the receiver to represent Meadow Springs. Mr Solomon points to authorities, such as Unity Insurance Brokers Pty Limited v Rocco Pezzano Pty Limited (1998) 193 CLR 603 at [55], [97] and [124], which refer to the public interest in disputes being settled. However, the public interest does not require a Court to give effect to a settlement where it would not be appropriate to do so. A Court should not act otherwise than judicially and in good conscience simply to rubber stamp an agreement between those with an interest in litigation.
Case: Aloridge Pty Ltd (prov liq apptd) v Christianos [1994] FCA 972 ; (1994) 13 ACSR 99
Outcome: discussed
Aloridge Pty Ltd (prov liq apptd) v Christianos [1994] FCA 972 ; (1994) 13 ACSR 99 , Burchett J made an order under s 447A of the Act that the administration of a company end. A provisional liquidator had been appointed to the company and he was actively pursuing a number of disputes on behalf of the company, including a dispute about the charge held by the person who had appointed the administrator. In light of the facts, Burchett J drew the inference that the appointment of an administrator was made not for the purposes for which the Act makes provision, "but in order to wrest control of the affairs of the company away from the provisional liquidator in the hope that the administrator might prove more compliant" (at 102). In determining the purposes for the appointment of an administrator, Burchett J had regard to the object of Part 5.3A set out in s 435A.
Case: Blacktown City Council v Macarthur Telecommunications Pty Ltd (admins apptd) [2003] NSWSC 883 ; (2004) 47 ACSR 391
Outcome: discussed
Blacktown City Council v Macarthur Telecommunications Pty Ltd (admins apptd) [2003] NSWSC 883 ; (2004) 47 ACSR 391 , Barrett J made an order that the administration of a company end forthwith. Barrett J referred to the decision of the High Court in Williams v Spautz and said that a consideration of purpose meant that it was appropriate to examine first the proper purposes of Part 5.3A of the Act. He referred to s 435A and said (at 396 [19]): "But that is a broad statement only. Examination of Part 5.3A as a whole shows that there are several purposes which together contribute to the widely stated object. The provisions imposing the various moratoriums show that there is a purpose of allowing time for unpressured but reasonably prompt consideration of possible reconstruction possibilities. The provisions as to creditors meetings and creditor decision-making, including those concerning deeds of company arrangement, show that there is a purpose of allowing reconstruction possibilities to be pursued in such a way that, if creditors so desire, a legacy of debt may be left behind and winding up, which would normally be the product of an intolerable debt burden, may be avoided. Implicit in that, of course, is the proposition that the company will thereby be permitted to return to the mainstream of commercial life. Another purpose is that if the company is not capable of returning to the mainstream of commercial life, there will be some better outcome for creditors than that available in an immediate winding up. The importance of keeping that purpose in mind, in a case such as the present, was emphasised by Sundberg J in Dallinger v Halcha Holdings Pty Ltd (1995) 60 FCR 594 ; 134 ALR 178 ; 18 ACSR 835. "
Case: Cawthorn v Keira Constructions Pty Ltd (1994) 33 NSWLR 607
Outcome: referred to
power in s 447A(1) is a broad power. I refer to Cawthorn v Keira Constructions Pty Ltd (1994) 33 NSWLR 607 ; Milankov Nominees Pty Ltd v Roycol Ltd (1994) 52 FCR 378 which cases dealt with s 447A as it was in the Corporations Law .
Case: Milankov Nominees Pty Ltd v Roycol Ltd (1994) 52 FCR 378
Outcome: referred to
power in s 447A(1) is a broad power. I refer to Cawthorn v Keira Constructions Pty Ltd (1994) 33 NSWLR 607 ; Milankov Nominees Pty Ltd v Roycol Ltd (1994) 52 FCR 378 which cases dealt with s 447A as it was in the Corporations Law .
Case: Spacorp Australia Pty Ltd v Fitzgerald (2001) 19 ACLC 979
Outcome: discussed
Spacorp Australia Pty Ltd v Fitzgerald (2001) 19 ACLC 979 , Beach J made an order bringing the administration of a company to an end. He concluded that the action of a creditor of the company in appointing administrators was an abuse of process. The creditor had served a statutory demand on the company pursuant to s 459E of the Corporations Law . On an application by the company, the statutory demand was set aside. The creditor appealed and was successful. The company appealed to the Court of Appeal, and the time for compliance with the statutory demand was extended pending the determination of the appeal. At that point, the creditor appointed administrators to the company. Beach J found that, in the circumstances, the appointment of administrators was an abuse of process. His Honour said (at 982 [28]): "Having chosen to serve a statutory notice on Spacorp with a view to having it wound up and been thwarted in the way it has, I think that it was totally inappropriate for Myer to seek then to attain its objective by appointing administrators. All the more so when it was well aware of the fact that the appeal was on foot and that the Court of Appeal had stayed the time for compliance with the statutory notice until after the hearing and determination of the appeal."
Case: St Leonards Property Pty Ltd v Ambridge Investments Pty Ltd (admins apptd) [2004] NSWSC 851 ; (2004) 50 ACSR 443
Outcome: discussed
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.
Case: Williams v Spautz [1992] HCA 34 ; (1992) 174 CLR 509
Outcome: referred to
Foti accepts that he carries the onus of establishing that Mr Salisbury had an improper purpose in appointing the administrators. He acknowledges that there is no direct evidence of that fact and he asks the Court to draw an inference of an improper purpose. Both parties referred to the decision of the High Court in Williams v Spautz [1992] HCA 34 ; (1992) 174 CLR 509 (" Williams v Spautz "). The case is not directly on point, but it does contain an analysis of the common law doctrine of abuse of process where the abuse is said to be the bringing of proceedings for a collateral purpose. Mr Foti accepts that he must show not only that Mr Salisbury had an improper purpose, but also that it was his predominant purpose. Before examining the evidence, it is convenient to consider some of the cases which have addressed the circumstances in which the Court will find that an administrator was appointed for an improper purpose. In Blacktown City Council v Macarthur Telecommunications Pty Ltd (admins apptd) [2003] NSWSC 883 ; (2004) 47 ACSR 391 , Barrett J made an order that the administration of a company end forthwith. Barrett J referred to the decision of the High Court in Williams v Spautz and said that a consideration of purpose meant that it was appropriate to examine first the proper purposes of Part 5.3A of the Act. He referred to s 435A and said (at 396 [19]): "But that is a broad statement only. Examination of Part 5.3A as a whole shows that there are several purposes which together contribute to the widely stated object. The provisions imposing the various moratoriums show that there is a purpose of allowing time for unpressured but reasonably prompt consideration of possible reconstruction possibilities. The provisions as to creditors meetings and creditor decision-making, including those concerning deeds of company arrangement, show that there is a purpose of allowing reconstruction possibilities to be pursued in such a way that, if creditors so desire, a legacy of debt may be left behind and winding up, which would normally be the product of an intolerable debt burden, may be avoided. Implicit in that, of course, is the proposition that the company will thereby be permitted to return to the mainstream of commercial life. Another purpose is that if the company is not capable of returning to the mainstream of commercial life, there will be some better outcome for creditors than that available in an immediate winding up. The importance of keeping that purpose in mind, in a case such as the present, was emphasised by Sundberg J in Dallinger v Halcha Holdings Pty Ltd (1995) 60 FCR 594 ; 134 ALR 178 ; 18 ACSR 835. "
Case: Shi v Migration Agents Registration Authority [2008] HCA 31 ; (2008) 248 ALR 390
Outcome: cited
A deemed refusal to grant access to documents will thus only occur if the relevant request has been made to an "agency" or a "Minister". Ms Luck's request was made to the USQ. It is not a Minister. Nor is it an "agency". An agency is defined in s 4 of the FOI Act to mean "a Department, a prescribed authority or an eligible case manager." The USQ is none of these things. It is not a Commonwealth Department of State. It is not established under a Commonwealth enactment or for the purposes of a Commonwealth Act. It is established under a Queensland Act, the University of Southern Queensland Act 1998 (Qld). It is not "an eligible case manager". That being so there has been no refusal deemed or actual of Ms Luck's request for access to documents held by the USQ. As a result s 55(1) of the FOI Act and s 25 of the AAT Act do not confer jurisdiction of the Tribunal to hear and determine Ms Luck's application to it. No other source of jurisdiction has been suggested. There was, therefore, no decision, made by USQ, which the AAT had jurisdiction to review: see Shi v Migration Agents Registration Authority [2008] HCA 31 ; (2008) 248 ALR 390 at [132] . 13 The Tribunal, was therefore, correct in law in holding that it lacked jurisdiction and in exercising its powers under s 42A(4) of the AAT Act . Its reasons for so doing might have been expressed in more detail.
Case: TNT Skypack International (Aust) Pty Ltd v Federal Commissioner of Taxation [1988] FCA 119 ; (1988) 82 ALR 175
Outcome: cited
There is a further reason why Ms Luck's purported appeal to this Court, has little prospect of success. It is that, at least as presently drafted, her notice of appeal identifies no questions of law which could form the subject matter of the appeal: see TNT Skypack International (Aust) Pty Ltd v Federal Commissioner of Taxation [1988] FCA 119 ; (1988) 82 ALR 175 at 178 (per Gummow J).
Case: Boston Commercial Services Pty Ltd (ACN 114 658 070) v GE Capital Finance Australasia Pty Ltd (ACN 070 396 020) [2006] FCA 1352 ; (2006) 236 ALR 720
Outcome: referred to
Section 31A of the FCA Act empowers the Court to give judgment for a respondent if an applicant or appellant "has no reasonable prospect of successfully prosecuting [a] proceeding ..." A proceeding may have no reasonable prospect of success even though it is not hopeless or bound to fail: see s 31A(3). This is not a case in which contested evidence is involved: cf Boston Commercial Services Pty Ltd (ACN 114 658 070) v GE Capital Finance Australasia Pty Ltd (ACN 070 396 020) [2006] FCA 1352 ; (2006) 236 ALR 720 at 731 (per Rares J). In such a case the Court will approach the potential application of s 31A with some caution. USQ bases its application for summary judgment on a straight forward question of law: whether the AAT, as it held, lacks jurisdiction to entertain Ms Luck's application. The answer is, in my view, clear. Ms Luck has pursued her application for access to documents under both Commonwealth and Queensland freedom of information legislation. She may well have a right to challenge the USQ's failure to make a decision on her application under the Queensland legislation. She does not have that right under the Commonwealth Act for the reasons which I have explained.
Case: Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd [2008] FCAFC 60 ; (2008) 167 FCR 372
Outcome: cited
In these circumstances her proposed appeal has no reasonable prospects of success. Indeed, it is bound to fail. The Court should, in the exercise of its discretion, dismiss the purported appeal under s 31A of the FCA Act : see Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd [2008] FCAFC 60 ; (2008) 167 FCR 372 at 406-409 (per Gordon J). I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice TRACEY. Associate: Dated: 22 October 2008 The appellant was self represented Counsel for the Respondent: Mr J Pizer Solicitor for the Respondent: Clayton Utz Date of Hearing: 22 October 2008 Date of Judgment: 22 October 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1582.html
Case: A v Hayden [1984] HCA 67 ; (1984) 156 CLR 532
Outcome: cited
way of arriving at the same result may be to observe that equity would not impose a fiduciary duty obedience to which would fetter foreign policy. I have no doubt that a contract entered into by the Commonwealth which purported to bind it to some particular foreign policy posture would be unenforceable: Ansett Transport Industries (Operations) Pty Ltd v Commonwealth [1977] HCA 71 ; (1977) 139 CLR 54 at 75 per Mason J; A v Hayden [1984] HCA 67 ; (1984) 156 CLR 532 at 543 per Gibbs CJ; City of Subiaco v Heytesbury Properties Pty Ltd (2001) 24 WAR 146 at 157-159 [43]-[50] per Ipp J with whom Malcolm CJ and Wallwork J agreed. Whilst it is true that equity can often achieve outcomes which the common law or statute appear not to countenance the doctrine of part performance is an obvious example I do not think that the Chancellor's foot treads the boards of the world stage.
Case: Alcorn v Anbro Engineering Inc 468 P2d 216 (1970)
Outcome: referred to
authors of The Law of Torts in Australia (4th ed, OUP, 2007) devote an extensive section advocating a change to this position. They note the existence in the US of a right to recover where a case involves "extreme and outrageous intentional invasions of one's mental and emotional tranquility" citing Alcorn v Anbro Engineering Inc 468 P2d 216 (1970) at 218 [4] per Burke J. They also note the remarks of Lord Hoffman in Hunter v Canary Wharf Ltd [1997] UKHL 14 ; [1997] AC 655 at 707 to this effect: The perceived gap in Khorasandjian v. Bush was the absence of a tort of intentional harassment causing distress without actual bodily or psychiatric illness. This limitation is thought to arise out of cases like Wilkinson v. Downton [1897] 2 Q.B. 57 and Janvier v. Sweeney [1919] 2 K.B. 316. The law of harassment has now been put on a statutory basis (see the Protection from Harassment Act 1997) and it is unnecessary to consider how the common law might have developed. But as at present advised, I see no reason why a tort of intention should be subject to the rule which excludes compensation for mere distress, inconvenience or discomfort in actions based on negligence: see Hicks v. Chief Constable of the South Yorkshire Police [1991] UKHL 9 ; [1992] 2 All E.R. 65. The policy considerations are quite different. I do not therefore say that Khorasandjian v. Bush was wrongly decided. But it must be seen as a case on intentional harassment, not nuisance.
Case: Ansett Transport Industries (Operations) Pty Ltd v Commonwealth [1977] HCA 71 ; (1977) 139 CLR 54
Outcome: cited
way of arriving at the same result may be to observe that equity would not impose a fiduciary duty obedience to which would fetter foreign policy. I have no doubt that a contract entered into by the Commonwealth which purported to bind it to some particular foreign policy posture would be unenforceable: Ansett Transport Industries (Operations) Pty Ltd v Commonwealth [1977] HCA 71 ; (1977) 139 CLR 54 at 75 per Mason J; A v Hayden [1984] HCA 67 ; (1984) 156 CLR 532 at 543 per Gibbs CJ; City of Subiaco v Heytesbury Properties Pty Ltd (2001) 24 WAR 146 at 157-159 [43]-[50] per Ipp J with whom Malcolm CJ and Wallwork J agreed. Whilst it is true that equity can often achieve outcomes which the common law or statute appear not to countenance the doctrine of part performance is an obvious example I do not think that the Chancellor's foot treads the boards of the world stage.