mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Re Bolton; ex parte Beane [1987] HCA 12 ; (1987) 162 CLR 514
Outcome: cited
An assertion as to its meaning and effect in an explanatory memorandum circulated by or with the authority of the Minister introducing a Bill into Parliament, like the Second Reading Speech in respect of that Bill, is not a substitute for the language employed by the Parliament in the Bill as enacted: Re Bolton; ex parte Beane [1987] HCA 12 ; (1987) 162 CLR 514 , at 518; Director of Public Prosecutions (Victoria) v Le [2007] HCA 52 ; (2007) 232 CLR 562 at 573, [29] and 586, [85]. It is the duty of the courts to construe enactments, not to make them. If, truly, the language of an enactment does not translate into law a meaning and effect that one might apprehend from secondary materials was intended it is for the Parliament to rectify that by further legislative provision.
Case: Re Judiciary and Navigation Acts [1921] HCA 20 ; (1921) 29 CLR 257
Outcome: cited
I am satisfied that, in the events that have transpired, there is a justiciable "matter" with the present being a proceeding in that matter: In Re Judiciary and Navigation Acts [1921] HCA 20 ; (1921) 29 CLR 257.
Case: Case W59 (2004) 21 NZTC 11,551
Outcome: cited
To note this particular absence of s 9-5 reference quality in Div 147 is to note a resemblance between the provision in s 147-5 of the GST Act for the registration of representatives of incapacitated persons and the position which prevailed under the Goods and Services Tax Act 1985 (NZ) (the NZ GST Act) as originally enacted. Subsection 58(1) of the NZ GST Act originally allowed the Commissioner for Inland Revenue to deem such persons to be registered. Section 58 of the NZ GST Act was amended in 1992 by s 11 of the Goods and Services Tax Amendment Act (No 2) 1992 (NZ) so as to substitute a new subsection 1 and, tellingly, to add a new subsection, s 58(1A) which provided, materially that, "For the purposes of this Act ..., where any person becomes a specified agent [defined so as to include a liquidator] that person shall ... be deemed to be a registered person carrying on the taxable activity of the incapacitated person during [the agency period] and the incapacitated person shall during that period be deemed not to be carrying on that taxable activity" . Section 58 of the NZ GST Act has since been further amended so as to remove an anomaly in the operation of this subsection exposed in Case W59 (2004) 21 NZTC 11,551 (Willy DCJ constituting the Taxation Review Authority). Perhaps surprisingly, given the affinities between New Zealand's GST regime and Australia's, Div 147 contains no equivalent to s 58(1A) of the NZ GST Act .
Case: Arcibal v Secretary Department of Family &amp; Community Services (2002) 36 AAR 53
Outcome: cited
Tribunal, correctly, in my view, identified the basis of the claim and proceeded to deal with the merits of the claim, beginning at [9] of its Reasons for Decision. In particular, the Tribunal referred to and relied upon a decision of Heerey J in this Court in Arcibal v Secretary Department of Family &amp; Community Services (2002) 36 AAR 53 , where his Honour discussed the meaning of the expression " extreme circumstances ". His Honour referred to and relied upon the Oxford English Dictionary's definition of the word " extreme ", ie, as meaning " presenting in the utmost degree some particular characteristic ". His Honour held that the Tribunal was entitled to look at the whole of the circumstances in which an applicant leaves his or her home, when considering an application under s 1061JH(1)(a). In the case before his Honour, those circumstances included the provision of alternative accommodation during the period of absence. At [16] of its Reasons, the Tribunal said: While it was necessary for the Applicant to leave her home while the bathroom renovations were carried out, unsatisfactorily in her view, I do not accept that that was an extreme circumstance because: (a) NSW Housing arranged for and paid for the alternative temporary accommodation at a hotel; (b) The Applicant was given cabcharges to transport herself from home to the hotel and from the hotel back to home; (c) The Applicant was not rendered homeless; and (d) During the renovations, the Applicant continued to receive disability support pension (DSP).
Case: Croker v Philips Electronics Australia Limited [2000] FCA 1731
Outcome: applied
dealing with such an application, the Court has a discretion which must be exercised judicially. The likelihood of leave to appeal being granted is a relevant consideration ( Deighton v Telstra Corporation Ltd [1997] FCA 1568). The applicant must also explain the delay (see Croker v Philips Electronics Australia Limited [2000] FCA 1731).
Case: Deighton v Telstra Corporation Ltd [1997] FCA 1568 
Outcome: applied
dealing with such an application, the Court has a discretion which must be exercised judicially. The likelihood of leave to appeal being granted is a relevant consideration ( Deighton v Telstra Corporation Ltd [1997] FCA 1568). The applicant must also explain the delay (see Croker v Philips Electronics Australia Limited [2000] FCA 1731).
Case: Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd [2008] FCAFC 60 ; (2008) 167 FCR 372
Outcome: applied
decision of his Honour was interlocutory (see Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2009] FCAFC 117 at [32] [43]; Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd [2008] FCAFC 60 ; (2008) 167 FCR 372 ; and Wills v Australian Broadcasting Corporation (2009) 173 FCR 284). For that reason, leave to appeal from that decision is required.
Case: Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2009] FCAFC 117
Outcome: applied
decision of his Honour was interlocutory (see Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2009] FCAFC 117 at [32] [43]; Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd [2008] FCAFC 60 ; (2008) 167 FCR 372 ; and Wills v Australian Broadcasting Corporation (2009) 173 FCR 284). For that reason, leave to appeal from that decision is required.
Case: Wills v Australian Broadcasting Corporation (2009) 173 FCR 284
Outcome: applied
decision of his Honour was interlocutory (see Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2009] FCAFC 117 at [32] [43]; Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd [2008] FCAFC 60 ; (2008) 167 FCR 372 ; and Wills v Australian Broadcasting Corporation (2009) 173 FCR 284). For that reason, leave to appeal from that decision is required.
Case: Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336
Outcome: cited
The federal magistrate had previously dealt with the matter in a way which was beneficial to the applicant. However, that initial determination was set aside by a Full Court of this Court in Minister for Immigration and Citizenship v SZLIX [2008] FCAFC 171 ; (2008) 245 ALR 501. In the first of his judgments the learned federal magistrate had determined that the applicant was entitled to prerogative writs on the basis of the fraud of a migration agent. He was able to identify sufficient elements in the evidence before him to make good that determination of fraud. The Full Court held that the evidence which was before the federal magistrate could not, at the requisite Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336 standard, make good the fraud allegation. The Court remitted the matter back to the federal magistrate to be determined in accordance with its reasons. The federal magistrate then conducted a rehearing. At the rehearing, some additional material was placed before the federal magistrate. Some of that material was accepted. Part of that material was rejected.
Case: Jess v Scott (1986) 12 FCR 187
Outcome: applied
The primary application before me is, of course, an application pursuant to Order 52 rule 15(2) of the Federal Court Rules to allow the filing and service of the notice of appeal out of time. That rule is only activated if there are present special reasons. What is connoted by the concept of special reasons is discussed in the Full Court's decision in Jess v Scott (1986) 12 FCR 187 at 195 in the following terms: ... an expression describing a flexible discretionary power, but one requiring a case to be made upon grounds sufficient to justify a departure, in the particular circumstances, from the ordinary rule prescribing a period within which an appeal must be filed and served. 9 I do not think that the explanation which has been proffered for the delay constitutes special circumstances. The affidavit material proffered by the applicant this morning did not disclose anything other than that he had missed the time limit because he had made an ongoing ministerial intervention request. That would not constitute a special reason. The mere fact that one avenue is being pursued does not justify not pursuing another. Certainly, even to the extent that it could, that extent could not be described as constituting special reasons. 10 When the matter came before me this morning the applicant also relied on some correspondence which was tendered. That correspondence does not establish anything other than that he sought to withdraw his application for a bridging visa. That does not constitute special reasons or, indeed, any reasons at all. In all those circumstances, but particularly having regard to the apparent futility of the proposed appeal, it is inappropriate to exercise the discretion in the applicant's favour. It follows that the application for an extension of time pursuant to Order 52 rule 15(2) must be dismissed.
Case: Minister for Immigration and Citizenship v SZLIX [2008] FCAFC 171 ; (2008) 245 ALR 501
Outcome: referred to
The federal magistrate had previously dealt with the matter in a way which was beneficial to the applicant. However, that initial determination was set aside by a Full Court of this Court in Minister for Immigration and Citizenship v SZLIX [2008] FCAFC 171 ; (2008) 245 ALR 501. In the first of his judgments the learned federal magistrate had determined that the applicant was entitled to prerogative writs on the basis of the fraud of a migration agent. He was able to identify sufficient elements in the evidence before him to make good that determination of fraud. The Full Court held that the evidence which was before the federal magistrate could not, at the requisite Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336 standard, make good the fraud allegation. The Court remitted the matter back to the federal magistrate to be determined in accordance with its reasons. The federal magistrate then conducted a rehearing. At the rehearing, some additional material was placed before the federal magistrate. Some of that material was accepted. Part of that material was rejected.
Case: P S Chellaram &amp; Co Ltd v China Ocean Shipping Co [1991] HCA 36 ; (1991) 102 ALR 321
Outcome: applied
An order for security for costs is an exercise of discretion by the court in which the court must weigh all of the circumstances of the case: P S Chellaram &amp; Co Ltd v China Ocean Shipping Co [1991] HCA 36 ; (1991) 102 ALR 321 per McHugh J at 323 ( 'Chellaram' ). However, as McHugh J said (at 323): '[F]or many years the practice has been to order [a non-resident] party to provide security for costs unless that party can point to other circumstances which overcome the weight of the circumstance that that person is resident out of and has no assets within the jurisdiction'.
Case: Qureshi v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 11 ; (2005) 142 FCR 444
Outcome: discussed
The applicant also challenges the Commonwealth's prospect of substantial success on the cross-claim, foreshadowing an argument that the statutory imposition of the charges relied on contravenes s 55 of the Constitution . However Kenny J has ruled otherwise on a similar question: see Qureshi v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 11 ; (2005) 142 FCR 444 (' Qureshi' ). 26 In general it seems to me that, in principle, a case for security being ordered has been made out. Such is the strong prima facie position in relation to a claim brought by a person outside the jurisdiction of the Court. The major argument to the contrary is that the litigation, both as constituted and as projected (in the light of the intended cross-claim), involves important questions which it would be in the public interest to have determined. Whether under the guise of immigration detention it is lawful to incarcerate a detainee in a place of punishment, if that is what has occurred, is in my opinion, such a question. Whether there is no legal obstacle to the Commonwealth levying and conclusively quantifying the amount of the levy against a detainee the alleged costs of the detention is also such a question. (I understand Kenny J in Qureshi at [83]-[84] to have upheld the constitutionality of such a levy but not, by her judgment, necessarily to have foreclosed an argument about the legality of the conclusive quantification. In any case, Mr Soh wishes, if pressed, to challenge the correctness of her Honour's decision). 27 The public interest aspects of the matter do not, however, outweigh the strong presumption that an appropriate amount of security for costs should be ordered. Interesting and important as the questions may be, the Commonwealth is still in the position of a party faced with obviously considerable potential costs. I know little about the strength of the applicant's substantive arguments. Departures from the usual rule should not readily be made. Additionally, the good chance that the proceedings will not practically assist Mr Soh, because of the apparent debt to the Commonwealth, confirms such an approach.
Case: Swain Investments Limited v Danumet Pty Limited &amp; Anor (unreported, Supreme Court of New South Wales, Cole J, 5 May 1989)
Outcome: applied
In the circumstances, I am not satisfied that I can fairly estimate an appropriate amount for an order for security of costs. I decline simply to speculate and therefore will not make the order asked. In any case, my best guess is that any such amount would be quite modest. The likely relatively modest amount that might in any case be awarded also tells in favour of the course I propose. A somewhat similar approach was adopted by Cole J in Swain Investments Limited v Danumet Pty Limited &amp; Anor (unreported, Supreme Court of New South Wales, Cole J, 5 May 1989). His Honour concluded that (at 7-9): '...if an order for security for costs is to be made, an appropriate order would be that the plaintiff provide security sufficient to cover the cost of registration in New Zealand of any judgment obtained by the defendant against the plaintiff in this Court. No material was placed before me as to an appropriate figure for such security. I was informed that Morling J. had ordered $2,000 as an appropriate sum, but, as is apparent from the judgment, that was in respect of registration in the United Kingdom. Rath J., in 1984, regarded $750 as an appropriate amount in relation to registration in New Zealand. No doubt there has been some increase in costs. I accordingly would have ordered that the plaintiff provide security for costs in the sum of $1,000... I am unable to accept that the circumstance that a successful defendant may have to expend a comparatively modest sum of, say $1,000, to obtain registration of a costs judgment to enable its enforcement is, in a commercial matter, sufficient to justify the making of an order for the provision of security for costs in the sum of, say, $1,000.' 'Commercial matters' do not stand in any special position. 34 There is little legitimate point to an order for security for costs if it would give the recipient scant, real security if complied with, but would otherwise simply shut out an impecunious person from seeking legal redress for an alleged wrong. 35 The application for security for costs is dismissed with costs. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick. Associate: Dated: 17 May 2006 Counsel for the Applicant: Mr N Perram/Mr A D Crossland Solicitor for the Applicant: PSK Legal Counsel for the First Respondent: Mr S Lloyd/Ms K Morgan Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: There was no appearance for the Second Respondent Date of Hearing: 10 June 2005 Date of Judgment: 17 May 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/575.html
Case: Re; Rohde (1993) 42 FCR 149
Outcome: cited
Apart from the statement of affairs, which was filed with the Registrar in Bankruptcy on 21 January 1994, Lee J referred in his judgment only to two statements of affairs, made by the applicant, namely, the statement of affairs of 16 July 1991 (provided as part of the attempts to reach a composition under Pt X) , and the statement of affairs of 4 September 1991 (provided with the debtor's petition). His Honour made the orders abridging the time relying upon the provisions of s 33(1)(c) of the Act and the case of Re; Rohde (1993) 42 FCR 149 ('Rohde') . 32 The respondent appealed the decision of Lee J and the appeal was upheld by the Full Court. The decision of the Full Court is reported as Nilant v Macchia (1997) 78 FCR 419. The Full Court overruled the decision of Rohde and held that the Court does not have power pursuant to s 33(1)(c) of the Act to abridge the time limited by s 149(3) of the Act.
Case: Nilant v Macchia (1997) 78 FCR 419
Outcome: cited
The respondent appealed the decision of Lee J and the appeal was upheld by the Full Court. The decision of the Full Court is reported as Nilant v Macchia (1997) 78 FCR 419. The Full Court overruled the decision of Rohde and held that the Court does not have power pursuant to s 33(1)(c) of the Act to abridge the time limited by s 149(3) of the Act.
Case: Macchia v Nilant [2000] FCA 353
Outcome: cited
On 27 March 2000, Lee J, granting relief under s 306(1) of the Act, ordered that the statement of affairs signed by the applicant on 4 September 1991 and presented to the Registrar in Bankruptcy on that date be deemed to have been made out and filed in the office of the Registrar in Bankruptcy, and a copy furnished to the trustee of the sequestrated estate of the applicant, on 16 September 1991 in compliance with the requirements of s 54(1) of the Act ( Macchia v Nilant [2000] FCA 353).
Case: Dumitrasku v Official Receiver in Bankruptcy [2003] FMCA 477
Outcome: distinguished
In relation to his claim at par 4 in the application, the applicant relied upon the case of Dumitrasku v Official Trustee in Bankruptcy [2003] FMCA 477 ('Dumitrasku') in support of his submission that the Court has power to make an order under s 33A of the Act which would have the effect of backdating the date of his discharge to a date in October 1994. The applicant also relied on the authority of Baral v Official Trustee in Bankruptcy [1999] FCA 77 ('Baral') in support of that proposition. 91 I accept the submission by the counsel for the respondent that the Dumitrasku case does not assist the applicant. In that case, the applicant was still a bankrupt at the time that he brought the application. The applicant's primary ground of relief was founded on s 306 of the Act. The applicant sought declarations that a statement of affairs had been filed with the Official Receiver in compliance with s 54 of the Act on 3 October 2000; and that by the operation of s 149 of the Act he was discharged from bankruptcy on 4 October 2003. The Federal Magistrate granted the relief claimed pursuant to s 306 of the Act. 92 The Federal Magistrate also dealt obiter with the claim which the applicant had made in reliance on s 33A of the Act. He said that he would have been prepared to grant relief under that section had he been required to do so. However, what is significant in that case was that the applicant was still bankrupt at the time of the making and hearing of the application. Here the applicant had been discharged from bankruptcy for more than eight years when the application was made. It is plain from the terms of s 33A(3) of the Act that relief under s 33A of the Act would not be available to a person who has already been discharged from bankruptcy at the time of making an application for that relief. Accordingly, the case of Dumitrasku relied on by the applicant has no application to this issue. Further, the Baral case relied upon by the applicant deals with annulment of bankruptcy and has no application to the construction of s 33A of the Act.
Case: Baral v Official Trustee in Bankruptcy [1999] FCA 77
Outcome: distinguished
In relation to his claim at par 4 in the application, the applicant relied upon the case of Dumitrasku v Official Trustee in Bankruptcy [2003] FMCA 477 ('Dumitrasku') in support of his submission that the Court has power to make an order under s 33A of the Act which would have the effect of backdating the date of his discharge to a date in October 1994. The applicant also relied on the authority of Baral v Official Trustee in Bankruptcy [1999] FCA 77 ('Baral') in support of that proposition. 92 The Federal Magistrate also dealt obiter with the claim which the applicant had made in reliance on s 33A of the Act. He said that he would have been prepared to grant relief under that section had he been required to do so. However, what is significant in that case was that the applicant was still bankrupt at the time of the making and hearing of the application. Here the applicant had been discharged from bankruptcy for more than eight years when the application was made. It is plain from the terms of s 33A(3) of the Act that relief under s 33A of the Act would not be available to a person who has already been discharged from bankruptcy at the time of making an application for that relief. Accordingly, the case of Dumitrasku relied on by the applicant has no application to this issue. Further, the Baral case relied upon by the applicant deals with annulment of bankruptcy and has no application to the construction of s 33A of the Act.
Case: Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62
Outcome: cited
It is well established that the Court's power to grant summary relief should be exercised with great caution. In Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 at 91 Dixon J observed: '...A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination...' 65 I would not dismiss the applicant's application on the grounds that the claims made in the current application are within the ambit of cl 4 of the deed of release. It is arguable that on a proper construction of that clause, the applicant's substantive application relates to the applicant's right to receive a distribution or benefit from his mother's estate, and that the application is, therefore, not covered by the bar in the deed of release.