mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 ; (1981) 147 CLR 589
Outcome: referred to
for the applicant made passing reference to the need to avoid a multiplicity of proceedings. He submitted that, subject to Anshun principles ( Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 ; (1981) 147 CLR 589 (" Anshun ")), the proposed amendments should be allowed to avoid a multiplicity of proceedings. There are difficulties with that submission and they were not addressed in submissions by either the applicant or the respondents. It seems to me that it would be a surprising construction of O 13 r 2(2) to give it the effect that a party has a right to amend at any stage unless it can be said that Anshun principles preclude a further proceeding. Even if this is the correct construction of the sub-rule, there seem to me some possible difficulties in applying the Anshun principles on an application to amend. In AON Risk Services Australia Limited v Australian National University [2009] HCA 27 ; (2009) 83 ALJR 951 ("AON"), the High Court addressed a rule (r 501 Court Procedure Rules 2006 (ACT)) in similar terms to O 13 r 2(2) and some of these difficulties (at [32]-[34] per French CJ; at [86]-[88] per Gummow, Hayne, Crennan, Kiefel and Bell JJ).
Case: Reading Australia Pty Ltd v Australian Mutual Provident Society [1999] FCA 718 ; (1999) 217 ALR 495
Outcome: referred to
was referred to a number of authorities, but I do not need to go through them in detail. The general principles are well known. They are summarised by Branson J in Reading Australia Pty Ltd v Australian Mutual Provident Society (1999) 217 ALR 495 ; [1999] FCA 718 at [6] - [9] . They were applied by Kenny J in Fleming's Nurseries Pty Ltd v Hannaford [2008] FCA 591. Orders separating liability from damages or an account of profits are often made in intellectual property cases. In Liberty Financial Pty Ltd v Scott [2003] FCA 226 at [40] , Weinberg J expressed the view that intellectual property cases, or at least intellectual property cases other than patent cases, should be treated no differently from other commercial cases. I do not need to enter that debate because this is not an intellectual property case. The claims made by the applicant include claims made under the Corporations Act and the TPA. In any event, there is no fixed and invariable rule that an order for the determination of separate questions will be made in intellectual property cases.
Case: Moore-McQuillan v WorkCover Corporation [2005] SASC 13
Outcome: cited
The penalty imposed was the recording of a conviction on two counts, and an order to perform community service hours. The learned Magistrate made an order under s 120(3) for payment of costs of $115,000 'inclusive of the GST component, investigation costs, and prosecution disbursements and costs'. An appeal against the convictions, and against the order under s 120(3) was dismissed: Moore-McQuillan v WorkCover Corporation [2005] SASC 13. 5 At the completion of his sentencing remarks, the learned Magistrate said: 'I order that the payment [of the $115,000] be made as follows: The defendant is to pay the Registrar for and on behalf of the complainant the legal costs of prosecution mentioned. He is to fix the time and method of payment with the Court's unit set up for that purpose. The default of payment is pursuant to the provisions of the Criminal Law Sentencing Act [sic]. ' 6 The trustee initially took the view that the award of costs of $115,000 'has the character of a penalty or fine imposed by the Court', so that s 82(3) of the Act applies and the liability is not a debt provable in the applicant's bankruptcy. Subsequently, he said the position was unclear. He has indicated there are no funds in the bankrupt estate of the applicant to enable any dividend to be paid. He does not therefore intend to call for proofs of debt. He has nevertheless attended to provide relevant materials to the Court and to assist the Court by submissions.
Case: Re Higgins; Ex parte Higgins and Nicholson (1984) 4 FCR 533
Outcome: distinguished
There is no definition of the expression 'penalties' in s 82(3). However, it has received judicial consideration. In Re Higgins; Ex parte Higgins and Nicholson (1984) 4 FCR 533 ( Higgins ), Spender J held that an award of costs in proceedings for a penalty or fine for an offence against a law was a component part of the total sum which bears a punitive character, and should be characterised as a penalty for the purposes of s 82(3) of the Act. Consequently, neither the fines imposed, nor the costs ordered to be paid, were provable in the bankruptcy. That decision was followed and applied by Farrell JR in Marshall v Western Australia (1998) 84 FCR 363. 13 However, I think it is necessary to look a little more closely at the decision in Higgins before simply applying it to the present application. The starting point is to note the overall purpose of the Act. 22 In my view, Higgins is not a decision directly on point. It too was an application under s 60(1) of the Act. Spender J made the determination that s 60(1) was not available in the particular circumstances, because the fine and costs imposed were in reality the punishment. The bankrupt was ordered to pay the fine and costs within a specified period, with a term of imprisonment in default of payment. His Honour at 537 described them as ' ... but components of a total sum which has a punitive character in that non-payment of which is visited by imprisonment'. Moreover, the costs order was made under the general discretionary power of the Magistrates Court under s 157 of the Justices Act 1886 (Qld) to order costs, and the costs were payable to the prosecuting authority (the Builders' Registration Board of Queensland) rather than to the victims of the contravening conduct. In addition, Spender J at 539 contrasted the situation with which he was faced with orders amounting to pecuniary penalties payable in consequence of the non-payment of a provable debt: see Storey v Lane (above) at 563.
Case: Marshall v Western Australia (1998) 84 FCR 363
Outcome: cited
There is no definition of the expression 'penalties' in s 82(3). However, it has received judicial consideration. In Re Higgins; Ex parte Higgins and Nicholson (1984) 4 FCR 533 ( Higgins ), Spender J held that an award of costs in proceedings for a penalty or fine for an offence against a law was a component part of the total sum which bears a punitive character, and should be characterised as a penalty for the purposes of s 82(3) of the Act. Consequently, neither the fines imposed, nor the costs ordered to be paid, were provable in the bankruptcy. That decision was followed and applied by Farrell JR in Marshall v Western Australia (1998) 84 FCR 363.
Case: Cummings v Claremont Petroleum NL [1996] HCA 19 ; (1996) 185 CLR 124
Outcome: cited
The Act generally operates to divest a bankrupt of his or her property, to vest that property in a trustee, and through the trustee to make it available for the payment of provable debts. Creditors generally are disentitled by s 58 from pursuing proceedings against the bankrupt to recover debts, and the bankrupt generally is also restricted by s 60(2) from pursuing proceedings the bankrupt has commenced. Hence, the assets of the bankrupt are distributed rateably among creditors, so no creditor secures an advantage over the others. Ultimately, following the discharge of the debtor from bankruptcy, the debtor may face the future free of liability for the debts existing at the time of the bankruptcy: see generally Cummings v Claremont Petroleum NL [1996] HCA 19 ; (1996) 185 CLR 124; Re McMaster (1991) 105 ALR 156.
Case: Re McMaster (1991) 105 ALR 156
Outcome: cited
The Act generally operates to divest a bankrupt of his or her property, to vest that property in a trustee, and through the trustee to make it available for the payment of provable debts. Creditors generally are disentitled by s 58 from pursuing proceedings against the bankrupt to recover debts, and the bankrupt generally is also restricted by s 60(2) from pursuing proceedings the bankrupt has commenced. Hence, the assets of the bankrupt are distributed rateably among creditors, so no creditor secures an advantage over the others. Ultimately, following the discharge of the debtor from bankruptcy, the debtor may face the future free of liability for the debts existing at the time of the bankruptcy: see generally Cummings v Claremont Petroleum NL [1996] HCA 19 ; (1996) 185 CLR 124; Re McMaster (1991) 105 ALR 156.
Case: Re Bradbury; Ex Parte The King; Official Receiver (Respondent) (1931) 3 ABC 204
Outcome: discussed
Under the earlier legislation, Re Bradbury; Ex Parte The King; Official Receiver (Respondent) (1931) 3 ABC 204 had held that a penalty for a criminal offence was not a provable debt. In that case the relevant liability comprised a fine imposed for certain offences under the Game Act 1928 (Vic) and the costs ordered to be paid (although the judgment does not separately address the characteristics of that part of the orders dealing with costs). In essence, the liability was found not to be a provable debt because it was in the nature of a punishment. The question was, however, addressed in a somewhat different context in Re Caddies; Ex parte Stapleton (1962) 19 ABC 155 ( Caddies ). The bankrupt, before his bankruptcy, had been convicted of false pretences, fined, and ordered to make restitution within three months, with a term of imprisonment in default of payment. Before the three month period had expired, he became bankrupt. He was, however, then arrested for non-payment of the fine and restitution, although the bankrupt by then had made some part payment which well exceeded the amount of the fine itself. Gibbs J at 158 held that the order of the police court was of a punitive character, in particular as the magistrate had a discretion whether to make a restitution order, and whether to order a term of imprisonment in default of compliance with it. Once the characterisation of the order as being 'something in the nature of punishment' was made, it was not an order in the nature of legal process to procure payment. The Court concluded that there was no power under the Bankruptcy Act 1924-1960 (Cth) to discharge the order upon which the bankrupt had been imprisoned. See also Commissioner for Motor Transport (NSW) v Train [1972] HCA 62 ; (1972) 127 CLR 396; Re Hollis (1968) 15 FLR 386.
Case: Re Caddies; Ex parte Stapleton (1962) 19 ABC 155
Outcome: discussed
Under the earlier legislation, Re Bradbury; Ex Parte The King; Official Receiver (Respondent) (1931) 3 ABC 204 had held that a penalty for a criminal offence was not a provable debt. In that case the relevant liability comprised a fine imposed for certain offences under the Game Act 1928 (Vic) and the costs ordered to be paid (although the judgment does not separately address the characteristics of that part of the orders dealing with costs). In essence, the liability was found not to be a provable debt because it was in the nature of a punishment. The question was, however, addressed in a somewhat different context in Re Caddies; Ex parte Stapleton (1962) 19 ABC 155 ( Caddies ). The bankrupt, before his bankruptcy, had been convicted of false pretences, fined, and ordered to make restitution within three months, with a term of imprisonment in default of payment. Before the three month period had expired, he became bankrupt. He was, however, then arrested for non-payment of the fine and restitution, although the bankrupt by then had made some part payment which well exceeded the amount of the fine itself. Gibbs J at 158 held that the order of the police court was of a punitive character, in particular as the magistrate had a discretion whether to make a restitution order, and whether to order a term of imprisonment in default of compliance with it. Once the characterisation of the order as being 'something in the nature of punishment' was made, it was not an order in the nature of legal process to procure payment. The Court concluded that there was no power under the Bankruptcy Act 1924-1960 (Cth) to discharge the order upon which the bankrupt had been imprisoned. See also Commissioner for Motor Transport (NSW) v Train [1972] HCA 62 ; (1972) 127 CLR 396; Re Hollis (1968) 15 FLR 386. 19 Pincus J concluded at 534 that the order for restitution was not a penalty under s 82(3) because it did not fall within the description of a 'punishment' as that term was used in the Criminal Code (Qld), and because the victim of the crime could clearly have proved in bankruptcy for the sums stolen. That is, the obligation underlying the order sought to be stayed was a debt provable in bankruptcy. His Honour preferred the 'non-punitive' characterisation of the restitution order to the views of Gibbs J in Caddies , partly in reliance upon the Queensland Court of Criminal Appeal in R v Civoniceva; Ex parte Attorney-General [1983] 2 Qd R 633 at 634-635. Hence, his Honour was able to (and did) exercise the discretionary power in s 60(1)(b) of the Act.
Case: Commissioner for Motor Transport (NSW) v Train [1972] HCA 62 ; (1972) 127 CLR 396
Outcome: cited
Under the earlier legislation, Re Bradbury; Ex Parte The King; Official Receiver (Respondent) (1931) 3 ABC 204 had held that a penalty for a criminal offence was not a provable debt. In that case the relevant liability comprised a fine imposed for certain offences under the Game Act 1928 (Vic) and the costs ordered to be paid (although the judgment does not separately address the characteristics of that part of the orders dealing with costs). In essence, the liability was found not to be a provable debt because it was in the nature of a punishment. The question was, however, addressed in a somewhat different context in Re Caddies; Ex parte Stapleton (1962) 19 ABC 155 ( Caddies ). The bankrupt, before his bankruptcy, had been convicted of false pretences, fined, and ordered to make restitution within three months, with a term of imprisonment in default of payment. Before the three month period had expired, he became bankrupt. He was, however, then arrested for non-payment of the fine and restitution, although the bankrupt by then had made some part payment which well exceeded the amount of the fine itself. Gibbs J at 158 held that the order of the police court was of a punitive character, in particular as the magistrate had a discretion whether to make a restitution order, and whether to order a term of imprisonment in default of compliance with it. Once the characterisation of the order as being 'something in the nature of punishment' was made, it was not an order in the nature of legal process to procure payment. The Court concluded that there was no power under the Bankruptcy Act 1924-1960 (Cth) to discharge the order upon which the bankrupt had been imprisoned. See also Commissioner for Motor Transport (NSW) v Train [1972] HCA 62 ; (1972) 127 CLR 396; Re Hollis (1968) 15 FLR 386.
Case: Re Hollis (1968) 15 FLR 386
Outcome: cited
Under the earlier legislation, Re Bradbury; Ex Parte The King; Official Receiver (Respondent) (1931) 3 ABC 204 had held that a penalty for a criminal offence was not a provable debt. In that case the relevant liability comprised a fine imposed for certain offences under the Game Act 1928 (Vic) and the costs ordered to be paid (although the judgment does not separately address the characteristics of that part of the orders dealing with costs). In essence, the liability was found not to be a provable debt because it was in the nature of a punishment. The question was, however, addressed in a somewhat different context in Re Caddies; Ex parte Stapleton (1962) 19 ABC 155 ( Caddies ). The bankrupt, before his bankruptcy, had been convicted of false pretences, fined, and ordered to make restitution within three months, with a term of imprisonment in default of payment. Before the three month period had expired, he became bankrupt. He was, however, then arrested for non-payment of the fine and restitution, although the bankrupt by then had made some part payment which well exceeded the amount of the fine itself. Gibbs J at 158 held that the order of the police court was of a punitive character, in particular as the magistrate had a discretion whether to make a restitution order, and whether to order a term of imprisonment in default of compliance with it. Once the characterisation of the order as being 'something in the nature of punishment' was made, it was not an order in the nature of legal process to procure payment. The Court concluded that there was no power under the Bankruptcy Act 1924-1960 (Cth) to discharge the order upon which the bankrupt had been imprisoned. See also Commissioner for Motor Transport (NSW) v Train [1972] HCA 62 ; (1972) 127 CLR 396; Re Hollis (1968) 15 FLR 386.
Case: Re Lenske; Ex parte Lenske (1986) 9 FCR 532
Outcome: followed
Re Lenske; Ex parte Lenske (1986) 9 FCR 532 concerned a debtor who had been convicted of stealing as a servant, and ordered to perform community service and to pay restitution under s 685A of the Criminal Code (Qld). The Magistrate made orders for imprisonment in default of payment of the restitution. The debtor became bankrupt on his own petition, and subsequently applied under s 60(1)(b) of the Act to stay the proceedings which were about to culminate in his imprisonment for defaulting in making the restitution ordered. Section 60(1)(b) is available only if the process to be stayed is in respect of the non-payment of a provable debt.
Case: R v Civoniceva; Ex parte Attorney-General [1983] 2 Qd R 633
Outcome: cited
Pincus J concluded at 534 that the order for restitution was not a penalty under s 82(3) because it did not fall within the description of a 'punishment' as that term was used in the Criminal Code (Qld), and because the victim of the crime could clearly have proved in bankruptcy for the sums stolen. That is, the obligation underlying the order sought to be stayed was a debt provable in bankruptcy. His Honour preferred the 'non-punitive' characterisation of the restitution order to the views of Gibbs J in Caddies , partly in reliance upon the Queensland Court of Criminal Appeal in R v Civoniceva; Ex parte Attorney-General [1983] 2 Qd R 633 at 634-635. Hence, his Honour was able to (and did) exercise the discretionary power in s 60(1)(b) of the Act.
Case: Re Sutherland-Cropper (1985) 11 FCR 156
Outcome: followed
A similar approach is reflected in the decisions of Re Sutherland-Cropper (1985) 11 FCR 156; Glass v Tarea Management (North Shore) Pty Ltd (in liq) (1990) 25 FCR 242; Re Keogh; Ex Parte Keogh v Director of Public Prosecutions (1995) 61 FCR 591 ( Re Keogh ); Re Lattouf (1994) 52 FCR 147 ( Re Lattouf ) ; Re Lattouf; Ex parte New South Wales Director of Public Prosecutions v Lattouf [1995] FCA 752 ; and Tatt v New South Wales Director of Public Prosecutions [1998] FCA 957. In each of those cases a restitution order (sometimes as a condition of a recognisance) had not been complied with following conviction for a criminal offence. Hence, s 60(1) has been found to be available to stay the enforcement of an order to make restitution, or to stay that part of the order imposing consequences for non-compliance with a condition in a recognisance requiring restitution. That approach gives effect to the purpose and effect of s 60(1) of the Act as in force since 1980 and as explained by Gibbs CJ in Storey v Lane [1981] HCA 47 ; (1981) 147 CLR 549 at 556.
Case: Glass v Tarea Management (North Shore) Pty Ltd (in liq) (1990) 25 FCR 242
Outcome: followed
A similar approach is reflected in the decisions of Re Sutherland-Cropper (1985) 11 FCR 156; Glass v Tarea Management (North Shore) Pty Ltd (in liq) (1990) 25 FCR 242; Re Keogh; Ex Parte Keogh v Director of Public Prosecutions (1995) 61 FCR 591 ( Re Keogh ); Re Lattouf (1994) 52 FCR 147 ( Re Lattouf ) ; Re Lattouf; Ex parte New South Wales Director of Public Prosecutions v Lattouf [1995] FCA 752 ; and Tatt v New South Wales Director of Public Prosecutions [1998] FCA 957. In each of those cases a restitution order (sometimes as a condition of a recognisance) had not been complied with following conviction for a criminal offence. Hence, s 60(1) has been found to be available to stay the enforcement of an order to make restitution, or to stay that part of the order imposing consequences for non-compliance with a condition in a recognisance requiring restitution. That approach gives effect to the purpose and effect of s 60(1) of the Act as in force since 1980 and as explained by Gibbs CJ in Storey v Lane [1981] HCA 47 ; (1981) 147 CLR 549 at 556.
Case: Re Keogh; Ex Parte Keogh v Director of Public Prosecutions (1995) 61 FCR 591
Outcome: followed
A similar approach is reflected in the decisions of Re Sutherland-Cropper (1985) 11 FCR 156; Glass v Tarea Management (North Shore) Pty Ltd (in liq) (1990) 25 FCR 242; Re Keogh; Ex Parte Keogh v Director of Public Prosecutions (1995) 61 FCR 591 ( Re Keogh ); Re Lattouf (1994) 52 FCR 147 ( Re Lattouf ) ; Re Lattouf; Ex parte New South Wales Director of Public Prosecutions v Lattouf [1995] FCA 752 ; and Tatt v New South Wales Director of Public Prosecutions [1998] FCA 957. In each of those cases a restitution order (sometimes as a condition of a recognisance) had not been complied with following conviction for a criminal offence. Hence, s 60(1) has been found to be available to stay the enforcement of an order to make restitution, or to stay that part of the order imposing consequences for non-compliance with a condition in a recognisance requiring restitution. That approach gives effect to the purpose and effect of s 60(1) of the Act as in force since 1980 and as explained by Gibbs CJ in Storey v Lane [1981] HCA 47 ; (1981) 147 CLR 549 at 556. 24 The power under s 60(1)(b) is discretionary. In this matter, I am satisfied on the evidence that the applicant is bankrupt, and is unable to satisfy the costs order. He is a disability pensioner. He has no employment. That is also in part demonstrated by the processes against him under the Sentencing Act since the costs order was made, and which have not resulted in him paying the costs order. The prospect of further enforcement procedures under the Sentencing Act imposing more disadvantage, without him having the capacity to meet the costs order, stands strongly in favour of exercising the discretion in his favour: see Storey v Lane (above) at 558. There appear to be no features of the applicant's circumstances which point in a contrary direction: cf Re Keogh at 596 ; Re Lattouf at 153. The second respondent, which is the beneficiary of the cost order, has not put forward any such countervailing considerations. I am therefore of the view that the order sought by the applicant should be made.
Case: Re Lattouf (1994) 52 FCR 147
Outcome: followed
A similar approach is reflected in the decisions of Re Sutherland-Cropper (1985) 11 FCR 156; Glass v Tarea Management (North Shore) Pty Ltd (in liq) (1990) 25 FCR 242; Re Keogh; Ex Parte Keogh v Director of Public Prosecutions (1995) 61 FCR 591 ( Re Keogh ); Re Lattouf (1994) 52 FCR 147 ( Re Lattouf ) ; Re Lattouf; Ex parte New South Wales Director of Public Prosecutions v Lattouf [1995] FCA 752 ; and Tatt v New South Wales Director of Public Prosecutions [1998] FCA 957. In each of those cases a restitution order (sometimes as a condition of a recognisance) had not been complied with following conviction for a criminal offence. Hence, s 60(1) has been found to be available to stay the enforcement of an order to make restitution, or to stay that part of the order imposing consequences for non-compliance with a condition in a recognisance requiring restitution. That approach gives effect to the purpose and effect of s 60(1) of the Act as in force since 1980 and as explained by Gibbs CJ in Storey v Lane [1981] HCA 47 ; (1981) 147 CLR 549 at 556.