mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: IW v City of Perth [1997] HCA 30 ; (1997) 191 CLR 1
Outcome: referred to
It is of course well established that the general purpose and policy of a statutory provision are a guide to its proper construction: see Australian Broadcasting Authority v Project Blue Sky [1998] HCA 28 ; (1998) 194 CLR 355 at [69] [71]; see also CIC Insurance Limited v Bankstown Football Club Limited [1997] HCA 2 ; (1995) 187 CLR 384 at 408. Ordinarily, the purpose will be gleaned from the legislative history and other extrinsic material as well as from the provisions of the statute considered as a whole: Newcastle City Council v GIO General Limited [1997] HCA 53 ; (1997) 191 CLR 85 at 112-113 per McHugh J. Regard may be paid to an object clause but it is to be read in light of the overall statutory regime: IW v City of Perth [1997] HCA 30 ; (1997) 191 CLR 1 at 12 per Brennan CJ and McHugh J.
Case: Khan v Minister for Immigration, Local Government and Ethnic Affairs (1987) 14 ALD 291
Outcome: referred to
There is ample authority for the proposition that inflexible application of a policy, even if the policy is consistent with the statute under which the power is conferred, gives rise to reviewable error: see eg NEAT Domestic Trading Pty Limited v AWB Limited [2003] HCA 35 ; (2003) 216 CLR 277 at [24] per Gleeson CJ; Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 364 at 640-641 per Brennan J; Elias v Commissioner of Taxation [2002] FCA 845 ; 123 FCR 499 at [34] per Hely J. Further authority for this proposition may be found in Khan v Minister for Immigration, Local Government and Ethnic Affairs (1987) 14 ALD 291; Oreb v Willcock [2004] FCA 1520 at [172] ; and Le v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCAFC 51 at [100] .
Case: Le v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCAFC 51
Outcome: cited
There is ample authority for the proposition that inflexible application of a policy, even if the policy is consistent with the statute under which the power is conferred, gives rise to reviewable error: see eg NEAT Domestic Trading Pty Limited v AWB Limited [2003] HCA 35 ; (2003) 216 CLR 277 at [24] per Gleeson CJ; Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 364 at 640-641 per Brennan J; Elias v Commissioner of Taxation [2002] FCA 845 ; 123 FCR 499 at [34] per Hely J. Further authority for this proposition may be found in Khan v Minister for Immigration, Local Government and Ethnic Affairs (1987) 14 ALD 291; Oreb v Willcock [2004] FCA 1520 at [172] ; and Le v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCAFC 51 at [100] .
Case: Minister for Immigration and Multicultural Affairs v Rajamanikkam [2002] HCA 32 ; (2002) 210 CLR 222
Outcome: applied
This ground of review is confined to findings of fact; it does not extend to expressions of opinion; Reserve Bank Case at [581]. The fact, as to which there is said to be no evidence, must be shown to be critical to the impugned decision: Minister for Immigration and Multicultural Affairs v Rajamanikkam [2002] HCA 32 ; (2002) 210 CLR 222; Reserve Bank Case at [584].
Case: NEAT Domestic Trading Pty Limited v AWB Limited [2003] HCA 35 ; (2003) 216 CLR 277
Outcome: cited
There is ample authority for the proposition that inflexible application of a policy, even if the policy is consistent with the statute under which the power is conferred, gives rise to reviewable error: see eg NEAT Domestic Trading Pty Limited v AWB Limited [2003] HCA 35 ; (2003) 216 CLR 277 at [24] per Gleeson CJ; Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 364 at 640-641 per Brennan J; Elias v Commissioner of Taxation [2002] FCA 845 ; 123 FCR 499 at [34] per Hely J. Further authority for this proposition may be found in Khan v Minister for Immigration, Local Government and Ethnic Affairs (1987) 14 ALD 291; Oreb v Willcock [2004] FCA 1520 at [172] ; and Le v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCAFC 51 at [100] .
Case: New South Wales v Fahy [2007] HCA 20 ; (2007) 81 ALJR 1021
Outcome: discussed
In New South Wales v Fahy [2007] HCA 20 ; (2007) 81 ALJR 1021, Gleeson CJ observed at [6], that the balancing exercise to be undertaken to determine the standard of "the reasonable person" should not be described as a "calculus". His Honour said that what is involved is a judgment about reasonableness which is not amenable to exact calculation. 167 Chief Justice Gleeson continued at [7] by referring to an earlier authority which pointed out that there are cases in which an unduly mathematical approach to the exercise can lead to an unreasonable result. See also at [57] per Gummow and Hayne JJ.
Case: New South Wales Council for Civil Liberties Inc v Classification Review Board (No. 2) [2007] FCA 896
Outcome: cited
The legislative scheme was described by Merkel J at first instance in Brown v Classification Review Board (1997) 145 ALR 464 at 466-468, and, on appeal from that decision, in Brown v Classification Review Board (1998) 82 FCR 225 at 231-233 (per French J), and at 252-254 (per Sundberg J). See also New South Wales Council for Civil Liberties Inc v Classification Review Board (No. 2) [2007] FCA 896 at [4] - [8] (per Edmonds J).
Case: Newcastle City Council v GIO General Limited [1997] HCA 53 ; (1997) 191 CLR 85
Outcome: referred to
It is of course well established that the general purpose and policy of a statutory provision are a guide to its proper construction: see Australian Broadcasting Authority v Project Blue Sky [1998] HCA 28 ; (1998) 194 CLR 355 at [69] [71]; see also CIC Insurance Limited v Bankstown Football Club Limited [1997] HCA 2 ; (1995) 187 CLR 384 at 408. Ordinarily, the purpose will be gleaned from the legislative history and other extrinsic material as well as from the provisions of the statute considered as a whole: Newcastle City Council v GIO General Limited [1997] HCA 53 ; (1997) 191 CLR 85 at 112-113 per McHugh J. Regard may be paid to an object clause but it is to be read in light of the overall statutory regime: IW v City of Perth [1997] HCA 30 ; (1997) 191 CLR 1 at 12 per Brennan CJ and McHugh J.
Case: Oreb v Willcock [2004] FCA 1520
Outcome: cited
There is ample authority for the proposition that inflexible application of a policy, even if the policy is consistent with the statute under which the power is conferred, gives rise to reviewable error: see eg NEAT Domestic Trading Pty Limited v AWB Limited [2003] HCA 35 ; (2003) 216 CLR 277 at [24] per Gleeson CJ; Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 364 at 640-641 per Brennan J; Elias v Commissioner of Taxation [2002] FCA 845 ; 123 FCR 499 at [34] per Hely J. Further authority for this proposition may be found in Khan v Minister for Immigration, Local Government and Ethnic Affairs (1987) 14 ALD 291; Oreb v Willcock [2004] FCA 1520 at [172] ; and Le v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCAFC 51 at [100] .
Case: Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 364 
Outcome: cited
There is ample authority for the proposition that inflexible application of a policy, even if the policy is consistent with the statute under which the power is conferred, gives rise to reviewable error: see eg NEAT Domestic Trading Pty Limited v AWB Limited [2003] HCA 35 ; (2003) 216 CLR 277 at [24] per Gleeson CJ; Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 364 at 640-641 per Brennan J; Elias v Commissioner of Taxation [2002] FCA 845 ; 123 FCR 499 at [34] per Hely J. Further authority for this proposition may be found in Khan v Minister for Immigration, Local Government and Ethnic Affairs (1987) 14 ALD 291; Oreb v Willcock [2004] FCA 1520 at [172] ; and Le v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCAFC 51 at [100] .
Case: Tillmanns Butcheries Pty Limited v Australasian Meat Industry Employees' Union (1979) 27 ALR 367 
Outcome: referred to
Nor do I think that the word "likely" in the phrase at hand calls for a rigid or technical approach. Mr Walters SC, for Adultshop, referred to the discussion of the meaning of "likely" in Tillmanns Butcheries Pty Limited v Australasian Meat Industry Employees' Union (1979) 27 ALR 367 at 375, 380-382. That question arose in considering the construction of s 45D of the Trade Practices Act where entirely different considerations apply. 169 I do not consider that a statutory body charged with the task of determining whether a sexually explicit film would be likely to cause offence need ask itself whether there is more than a 50% chance that this would be so. The Review Board must engage in a question of judgment, based upon its perception of the community standards of a diverse community. It seems to me that the degree of likelihood that it is required to assess is best described by the "real chance or possibility" test to which Deane J referred in Tillmanns at 382. 170 In summary, the "offensiveness" test for the X18+ classification in the Code is not determined by a mechanistic majoritarian approach. It calls for a judgment about the reaction of a reasonable adult in a diverse Australian society. 171 The "reasonable adult" test must accommodate the community standards of Toorak and Newtown as well as those of Kunnanurra and Broken Hill. It must also accommodate the standards of various subgroups within a multi-racial, secular society which nonetheless includes persons of different ages, political, religious and social views.
Case: Victims Compensation Fund v Brown [2002] NSWCA 155 ; (2002) 54 NSWLR 668 
Outcome: referred to
Wheeler JA's observations in Hutchins were not based upon a consideration of the extensive material or the statute as a whole. Nor was her Honour considering the cooperative legislative scheme which is the subject of these proceedings. Rather, her Honour's remarks were directed at the broad social purpose of this type of legislation. A statement of legislative purpose at this level of generality cannot displace the construction of the statute which emerges from an analysis of the language of the provision in its full context: Victims Compensation Fund v Brown [2002] NSWCA 155 ; (2002) 54 NSWLR 668 at [9] [10] per Spigelman CJ; his Honour's dissenting judgment was approved by the High Court in Victims Compensation Fund Corporation v Brown [2003] HCA 54 ; (2003) 201 ALR 260.
Case: Victims Compensation Fund Corporation v Brown [2003] HCA 54 ; (2003) 201 ALR 260
Outcome: applied
Wheeler JA's observations in Hutchins were not based upon a consideration of the extensive material or the statute as a whole. Nor was her Honour considering the cooperative legislative scheme which is the subject of these proceedings. Rather, her Honour's remarks were directed at the broad social purpose of this type of legislation. A statement of legislative purpose at this level of generality cannot displace the construction of the statute which emerges from an analysis of the language of the provision in its full context: Victims Compensation Fund v Brown [2002] NSWCA 155 ; (2002) 54 NSWLR 668 at [9] [10] per Spigelman CJ; his Honour's dissenting judgment was approved by the High Court in Victims Compensation Fund Corporation v Brown [2003] HCA 54 ; (2003) 201 ALR 260.
Case: Wurramura v Haymon (1987) 44 NTR 1 
Outcome: discussed
In Wurramura v Haymon (1987) 44 NTR 1, the appellants had been convicted of offensive behaviour for the act of sexual intercourse in a private house, at night with the light on in full view of a public street. On appeal, Asche J said, at 5, that the concept of offensive behaviour depends upon the circumstances in which it takes place and it must be looked at in a contemporary light. 154 His Honour continued as follows: "No doubt on the question of sexual mores the present age is more tolerant than any in the last century, but there are obviously still limits to what the general public will stand. Even in this day and age, performance of the act of sexual intercourse in public would be considered by the normal reasonable citizen of Australia as offensive, and offensive in the sense that some form of legal prohibition should occur. This does not in my mind make the average Australian some form of narrow minded Puritan. It merely means that he or she accepts that there are boundaries (liberal though they may be) which for the sake of themselves and their families should not be transgressed." 155 Justice Asche also said that behaviour is not necessarily offensive because it offends a particular person; there is a wide variety of personal idiosyncrasies. He quoted part of a passage from Shakespeare's The Merchant of Venice but said that, having some Scottish ancestry, he indignantly refused to quote the next few lines. I have no such ancestry, and will therefore happily quote the passage in full: "Some men there are love not a gaping pig; Some, that are mad if they behold a cat; And others, when the bagpipe sings i' the nose, Cannot contain their urine; for affection, Mistress of passion, sways it to the mood Of what it likes or loathes." 156 His Honour went on to say that the law on offensive behaviour is not for the unduly sensitive or the totally permissive. It strikes a balance. 157 Both Director of Public Prosecutions v Collins and Wurramura v Haymon dealt with offensive behaviour under penal statutes rather than depictions of acts likely to cause offence to a reasonable adult under a film classification scheme. Nevertheless, the definition of "offensive" in the Guidelines adopts the ordinary meaning of that term, ie. material which causes outrage or extreme disgust. Both of the authorities to which I have referred would appear to approach the meaning of the term in that sense.
Case: Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27 ; (2006) 226 CLR 256
Outcome: applied
protection of the processes of the Court and the administration of justice which this involves may, in a proper case, extend to asset preservation orders against third parties to the principal litigation: Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27 ; (2006) 226 CLR 256 at 265 per Gleeson CJ, Gummow, Hayne and Crennan JJ (citing from the joint judgments of Gaudron, McHugh, Gummow and Callinan JJ in Cardile 198 CLR at 395 [25] and in CSR Ltd v Signa Insurance Australia Limited [1997] HCA 33 ; (1997) 189 CLR 345 at 391). The effect of the administration, as Pt 5.3A contemplates, will be to bind all creditors, including the council, in the event that a deed of company arrangement is entered into and is not terminated. Because that may produce outcomes that possibly may impact on the conduct of the current proceedings in a way that is not necessarily the same as in the ordinary course of every other piece of litigation, I am of opinion that it is appropriate to require production of the insurance information sought having regard to considerations to which I have referred: Jackson [1987] HCA 23 ; 162 CLR 612 ; Batistatos [2006] HCA 27 ; 226 CLR 256 ; Lopez [1997] FCA 454.
Case: Cardile v LED Builders Pty Ltd [1999] HCA 18 ; (1999) 198 CLR 380
Outcome: applied
power of the Court to require a party to proceedings in which relief is sought against it to disclose its assets has been established authoritatively in Jackson v Sterling Industries Limited [1987] HCA 23 ; (1987) 162 CLR 612. In the leading judgment, Deane J ( Jackson 162 CLR at 622-623) discussed the power to make what are now known as Mareva orders ( Cardile v LED Builders Pty Ltd [1999] HCA 18 ; (1999) 198 CLR 380 at 401 [42] ) saying that (omitting citations): "That general power has been held to encompass an order requiring the disclosure by a defendant of his assets ... As a general proposition, it should now be accepted in this country that "a Mareva injunction can be granted ... if the circumstances are such that there is a danger of [the defendant's] absconding, or a danger of the assets being removed out of the jurisdiction or disposed of within the jurisdiction, or otherwise dealt with so that there is a danger that the plaintiff, if he gets judgment, will not be able to get it satisfied"." I am of opinion that the purposes of Pt 5.3A are relevant and do inform the exercise of the Court's discretion in this application to order production of documents of the kind sought. However, those purposes do not deny to the Court power properly to control and determine what orders it ought make in each particular case in the interests of the administration of justice, pursuant to its powers under s 23 of the Federal Court of Australia Act , or in its inherent or implied jurisdiction to ensure the protection of its process from any abuse: cf: Cardile 198 CLR at 396 [33]. The power of the Court to prevent abuse of its process comprehends a power to protect the integrity of its processes once set in motion. That includes the power to preserve the efficacy of the execution that would lie against a prospective judgment debtor. The protection of the processes of the Court and the administration of justice which this involves may, in a proper case, extend to asset preservation orders against third parties to the principal litigation: Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27 ; (2006) 226 CLR 256 at 265 per Gleeson CJ, Gummow, Hayne and Crennan JJ (citing from the joint judgments of Gaudron, McHugh, Gummow and Callinan JJ in Cardile 198 CLR at 395 [25] and in CSR Ltd v Signa Insurance Australia Limited [1997] HCA 33 ; (1997) 189 CLR 345 at 391).
Case: Houghton v Arms [2006] HCA 59 ; (2006) 225 CLR 553
Outcome: cited
of the relief claimed by the council in the principal proceedings is in relation to allegedly misleading statements by Lehman Brothers. In those circumstances, one Lehman Brothers' related company is proposing a deed of company arrangement that would have the effect, on the evidence before me, of seeking to destroy the creditors' right to sue directors and officers of the company for breaches of their obligations. Such a right may be capable of being enforced directly against the directors and officers in an action under the Trade Practices Act 1974 (Cth) or its analogues in State Fair Trading Acts : Houghton v Arms [2006] HCA 59 ; (2006) 225 CLR 553 at 566-567 [40] - [42] per Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ. The council is also in the position where its vote at the proposed meeting of creditors is, because of the administrators' current view, likely to be admitted at merely nominal value, whereas, the other parties who may benefit in that meeting, such as the related Lehman Brothers companies, have debts that will be available to vote for their full value of about $180 million, on a proposal they are seeking to put forward and commend to the other creditors. That may all have a dramatic impact on the rights and recourse of the council, were it successful in this litigation, in the event that the proceedings were permitted to continue having regard to the terms of the deed or any subsequent orders made by the Court granting the council leave to proceed to final hearing against Lehman Brothers. The grant of any such orders may, in themselves, be affected by the existence of insurance that, prima facie, does respond. Lehman Brothers has made claims on insurers A and B with respect to these proceedings. The information available to the council, as an ordinary incident of an administration under Pt 5.3A , is less than other creditors involved in this very administration, such as the related Lehman Brothers companies. While that is a result contemplated by the Parliament as potentially possible, the questions arise whether there will be potential or actual prejudice to the council in these proceedings of rights that may be valuable in the event that the council were able to succeed in obtaining a judgment in its favour.
Case: Lopez v Star World Enterprises Pty Ltd [1997] FCA 454
Outcome: followed
Lopez v Star World Enterprises Pty Ltd [1997] FCA 454 (unreported, 18 April 1997) Olney J held that a respondent company that had been placed in administration could be ordered by the Court to make available its insurance policies to the applicant. He held that after the respondent company had been placed in administration, and was in jeopardy of going into liquidation, the question whether or not there was any insurance indemnity available in the event of liability being established was a matter appropriate to take into account for the purpose of determining whether or not leave to proceed against the company should be given under s 440D(1) of the Corporations Act . For the purposes of doing justice and to progress the matter in an orderly fashion, Olney J ordered that the respondent company produce for inspection evidence of any relevant insurance policy that it had. Lehman Brothers does not suggest that his Honour erred in principle. But it seeks to distinguish his decision on the ground that those proceedings were brought under Pt IVA of the Federal Court of Australia Act , as representative proceedings. Lehman Brothers argues that the discretionary considerations attaching to the conduct of such proceedings and the fact that there is a large body of potential group members who may be affected, are grounds for confining the exercise of a similar discretion in favour of production of the insurance documents in a case such as the present. But the present circumstances are that the council is involved in the current litigation and an event has occurred in its course that has given rise to this application being made. That event is the administration of Lehman Brothers. No longer is Lehman Brothers the same entity as that with which the council dealt unlike in Beneficial Finance 68 SASR 19 , where the plaintiff had to take the solvent defendants as it found them. The same circumstances that enlivened Olney J's exercise of discretion to order production in Lopez [1997] FCA 454 have been introduced here by the intervening event of the administration and the consequent, inferred admission that Lehman Brothers is insolvent. The effect of the administration, as Pt 5.3A contemplates, will be to bind all creditors, including the council, in the event that a deed of company arrangement is entered into and is not terminated. Because that may produce outcomes that possibly may impact on the conduct of the current proceedings in a way that is not necessarily the same as in the ordinary course of every other piece of litigation, I am of opinion that it is appropriate to require production of the insurance information sought having regard to considerations to which I have referred: Jackson [1987] HCA 23 ; 162 CLR 612 ; Batistatos [2006] HCA 27 ; 226 CLR 256 ; Lopez [1997] FCA 454.