mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Johns v Australian Securities Commission [1993] HCA 56 , 178 CLR 408
Outcome: distinguished
Reliance by the Applicant upon Johns v Australian Securities Commission [1993] HCA 56 , 178 CLR 408 is misplaced. In issue in those proceedings was the disclosure of transcripts of examinations conducted pursuant to s 19 of the Australian Securities Commission Act 1989 (Cth). Section 25(3) authorised the Commission to give to persons a copy of a written record of an examination. Section 127(1) required the Commission to " take all reasonable measures to protect from unauthorised use or disclosure information given to it in confidence in or in connection with the performance of its functions or the exercise of its powers ". Section 127(4)(b) authorised the disclosure of information where it would " enable or assist the government, or an agency, of a State or Territory to perform a function or exercise a power ". These statutory provisions, it is considered, stand in contrast to s 56(4) of the 1998 Act. The provisions in issue in Johns authorised the giving to persons of written copies of an examination. There is no such counterpart provision in the 1998 Act. Although, as observed by Brennan J in Johns, s 25(3) and s 127(4)(b) were both relied upon " as alternative sources of authority to give copies of the transcripts to the Royal Commission ", the " better view may be that s 25(3) was the source of the authority and s 127(4)(b) was a limitation on its exercise ": [1993] HCA 56 ; (1993) 178 CLR 408 at 426. 28 Section 56(4) certainly does not expressly authorise the disclosure of information; nor can that provision be construed as impliedly authorising any such decision. The decision or decisions of the Authority were not made under s 56.
Case: LNC Industries Ltd v BMW (Australia) Ltd [1983] HCA 31 ; (1983) 151 CLR 575
Outcome: followed
If this Court is to have jurisdiction there must nevertheless remain a " matter " which it can be said arises under a law made by Parliament. A matter arises under a federal law " if the right or duty in question ... owes its existence to Federal law or depends upon Federal law for its enforcement ": R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett [1945] HCA 50 ; (1945) 70 CLR 141 at 154; LNC Industries Ltd v BMW (Australia) Ltd [1983] HCA 31 ; (1983) 151 CLR 575 at 581 per Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ.
Case: McGowan v Migration Agents Registration Authority [2003] FCA 482 , 77 ALD 49
Outcome: followed
It is thus recognised that " the notion of a 'matter ... arising under any laws made by the Parliament' ... is wider than that of a 'decision ... made under an enactment' ": White Industries Aust Ltd v Commissioner of Taxation [2007] FCA 511 at [111] , [2007] FCA 511 ; 160 FCR 298 at 319 per Lindgren J. A " matter ", for example, may arise under a law made by Parliament and this Court may have jurisdiction, even though there is no " decision " which is sought to be reviewed. Section 39B(1A)(c) is a provision which " should not be given an unduly narrow interpretation ": Saitta Pty Ltd v Commonwealth [2000] FCA 1546 at [89] , [2000] FCA 1546 ; 106 FCR 554 at 573. Justice Weinberg there observed that s 39B(1A)(c) " was intended to provide ample scope for judicial review " -- but what was intended by this observation is, perhaps, not clear: McGowan v Migration Agents Registration Authority [2003] FCA 482 at [34] , [2003] FCA 482 ; 129 FCR 118 at 128 per Branson J.
Case: Saitta Pty Ltd v Commonwealth [2000] FCA 1546 , 106 FCR 554
Outcome: followed
It is thus recognised that " the notion of a 'matter ... arising under any laws made by the Parliament' ... is wider than that of a 'decision ... made under an enactment' ": White Industries Aust Ltd v Commissioner of Taxation [2007] FCA 511 at [111] , [2007] FCA 511 ; 160 FCR 298 at 319 per Lindgren J. A " matter ", for example, may arise under a law made by Parliament and this Court may have jurisdiction, even though there is no " decision " which is sought to be reviewed. Section 39B(1A)(c) is a provision which " should not be given an unduly narrow interpretation ": Saitta Pty Ltd v Commonwealth [2000] FCA 1546 at [89] , [2000] FCA 1546 ; 106 FCR 554 at 573. Justice Weinberg there observed that s 39B(1A)(c) " was intended to provide ample scope for judicial review " -- but what was intended by this observation is, perhaps, not clear: McGowan v Migration Agents Registration Authority [2003] FCA 482 at [34] , [2003] FCA 482 ; 129 FCR 118 at 128 per Branson J.
Case: Salerno v National Crime Authority (1997) 75 FCR 133
Outcome: followed
Nor can reliance be placed by the Applicant upon s 11 of the Australian Prudential Regulation Authority Act as the source of the authority pursuant to which the decision was taken. A power of the kind conferred by s 11 does not authorise or require the making of any decision: cf Hutchins v Commissioner of Taxation (1996) 65 FCR 269 at 272; Salerno v National Crime Authority (1997) 75 FCR 133. As observed by the Full Court in Salerno , at 143: If a general authorisation in a statute for a decision by an organisation set up under that legislation is sufficient to make it a decision under the statute, and thus open to judicial review, every intra vires action of that organisation that has decisional effect and every kind of conduct engaged in by it for the purpose of making a decision will be examinable by the court. The potential for massive disruption of the organisation's activities that would be the consequence of such a conclusion is manifest. Appl'd: Electricity Supply Association of Australia Ltd v Australian Competition and Consumer Commission [2001] FCA 1296 at [70] , [2001] FCA 1296 ; 113 FCR 230 at 250 1 per Finn J.
Case: Trade Practices Commission v Nicholas Enterprises Pty Ltd (No 3) (1979) 42 FLR 213
Outcome: followed
Section 43 of the Federal Court of Australia Act confers discretion upon the Court to make an order for costs. That general discretion is " absolute and unfettered, except that it must be exercised judicially, not arbitrarily or capriciously ": Trade Practices Commission v Nicholas Enterprises Pty Ltd (No 3) (1979) 42 FLR 213 at 219. The general approach is that costs should follow the event: Hughes v Western Australian Cricket Association (Inc) (1986) ATPR 40-748 at 48,136 per Toohey J.
Case: Transport Workers Union v Lee (1998) 84 FCR 60 
Outcome: followed
No reliance is placed by the Applicant upon s 39B(1) of the Judiciary Act 1903 (Cth) conferring jurisdiction upon this Court. Reliance, however, is placed upon s 39B(1A)(c). That provision is as follows: (1A) The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter: ... (c) arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter. This provision is " relevantly identical to s 76(ii) of the Constitution ": Transport Workers Union v Lee (1998) 84 FCR 60 at 65. Black CJ, Ryan and Goldberg JJ there observed that: ... the identity of language suggests that the Parliament intended to exercise its power under s 77(i) of the Constitution to confer upon the Federal Court the same potential original jurisdiction as might be conferred upon the High Court of Australia under s 76(ii) [of the Constitution ]. ...
Case: White Industries Aust Ltd v Commissioner of Taxation [2007] FCA 511 , 160 FCR 298
Outcome: followed
It is thus recognised that " the notion of a 'matter ... arising under any laws made by the Parliament' ... is wider than that of a 'decision ... made under an enactment' ": White Industries Aust Ltd v Commissioner of Taxation [2007] FCA 511 at [111] , [2007] FCA 511 ; 160 FCR 298 at 319 per Lindgren J. A " matter ", for example, may arise under a law made by Parliament and this Court may have jurisdiction, even though there is no " decision " which is sought to be reviewed. Section 39B(1A)(c) is a provision which " should not be given an unduly narrow interpretation ": Saitta Pty Ltd v Commonwealth [2000] FCA 1546 at [89] , [2000] FCA 1546 ; 106 FCR 554 at 573. Justice Weinberg there observed that s 39B(1A)(c) " was intended to provide ample scope for judicial review " -- but what was intended by this observation is, perhaps, not clear: McGowan v Migration Agents Registration Authority [2003] FCA 482 at [34] , [2003] FCA 482 ; 129 FCR 118 at 128 per Branson J.
Case: Minister for Immigration and Multicultural and Indigenous Affairs v SZFDJ [2006] FCAFC 53
Outcome: cited
In my opinion, the appellant was, by the answer given by the Tribunal, denied the chance of establishing those two facts before the Tribunal. If it had been established that the document was authentic, the Tribunal might not have made the adverse credit findings. That being the case, in my opinion, the appellant has been denied a fair hearing and the Tribunal has fallen into jurisdictional error. Not every statement made by the Tribunal to an applicant which is factually incorrect or may mislead will give rise to a finding that the Tribunal has fallen into jurisdictional error. The statement or representation must give rise to unfairness in the sense that the applicant was denied a fair hearing: Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6 ; (2003) 214 CLR 1; Minister for Immigration and Multicultural and Indigenous Affairs v SZFDJ [2006] FCAFC 53 at [30] . Insofar as the Federal Magistrate said otherwise I think, with respect, he has fallen into error.
Case: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 ; (2001) 168 ALR 407 
Outcome: cited
The Federal Magistrate found that the Tribunal was entitled to make a finding adverse to the appellant regarding his credibility which he said was a function of the Tribunal: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 ; (2001) 168 ALR 407 at 423 per McHugh J. 29 The Federal Magistrate rejected the appellant's complaints insofar as the appellant sought a rehearing on the merits. 30 Similar matters are raised in the notice of appeal. The thrust of the appellant's complaints on appeal is that the Tribunal erred in (a) finding that the document was a forgery; (b) failing to accord the appellant procedural fairness that it might find the document to be a forgery; (c) failing to allow the appellant to present arguments relating to the issues as required under s 425 of the Act; and (d) failing to investigate the authenticity of the document pursuant to s 427(1)(d) of the Act. Insofar as the Federal Magistrate rejected those arguments, it is said that the Federal Magistrate fell into error.
Case: Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6 ; (2003) 214 CLR 1
Outcome: cited
In my opinion, the appellant was, by the answer given by the Tribunal, denied the chance of establishing those two facts before the Tribunal. If it had been established that the document was authentic, the Tribunal might not have made the adverse credit findings. That being the case, in my opinion, the appellant has been denied a fair hearing and the Tribunal has fallen into jurisdictional error. Not every statement made by the Tribunal to an applicant which is factually incorrect or may mislead will give rise to a finding that the Tribunal has fallen into jurisdictional error. The statement or representation must give rise to unfairness in the sense that the applicant was denied a fair hearing: Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6 ; (2003) 214 CLR 1; Minister for Immigration and Multicultural and Indigenous Affairs v SZFDJ [2006] FCAFC 53 at [30] . Insofar as the Federal Magistrate said otherwise I think, with respect, he has fallen into error.
Case: VAAC v Minister for Immigration [2003] FCAFC 74 ; (2003) 129 FCR 168 
Outcome: cited
It was put that the second and third grounds of appeal were not raised before the Federal Magistrate. The respondent objected to the appellant raising these grounds for the first time, especially in circumstances where the appellant has not explained why the matters were not raised on the application before the Federal Magistrate: VAAC v Minister for Immigration [2003] FCAFC 74 ; (2003) 129 FCR 168. 42 The third ground of appeal was abandoned. Section 425 was in different form when the Tribunal undertook its review. It then provided: 425. (1) Where section 424 does not apply, the Tribunal: (a) must give the applicant an opportunity to appear before it to give evidence; and (b) may obtain such other evidence as it considers necessary. (2) Subject to paragraph (1)(a), the Tribunal is not required to allow any person to address it orally about the issues arising in relation to the decision under review. 43 There was not then a statutory obligation to invite an applicant to present arguments relating to the issues. For that reason, that ground was rightly abandoned. Ground 2 was, I think, raised before the Federal Magistrates Court and could be the subject of an appeal.
Case: WACO v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 171 ; (2003) 131 FCR 511
Outcome: distinguished
The appellant has relied upon WACO v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 171 ; (2003) 131 FCR 511 where the Court found the Tribunal to be in breach of procedural fairness by failing to allow an applicant an opportunity to respond to its conclusion that documents which were submitted to the Tribunal at the Tribunal's request after the hearing were a forgery. 40 In this case, however, the Tribunal did not find the document to be a forgery. Rather, it refused to accept it as evidence in support of the appellant's credibility. Moreover, in this case, contrary to the facts in WACO [2003] FCAFC 171 ; 131 FCR 511, the Tribunal raised its concerns with the appellant about the status of the document during the hearing.
Case: Re Tempo Services Ltd (2005) 53 ACSR 523
Outcome: cited
Various affidavits including an affidavit by Lucinda Hughes Turnbull, a director of WCG, to the effect that she is willing to act as chairperson at the proposed Scheme meeting, and an affidavit of Sean Martin Howard to the effect that he is willing to act as alternate chairperson. Ms Turnbull and Mr Howard disclose the holdings of shares in WCG by companies associated with themselves respectively. 5 Senior counsel for WCG has properly drawn my attention to two matters, which may be described as the "performance risk issue" and the "no encumbrances" clause. The performance risk issue 6 The "performance risk issue" refers to the risk that MLB will not perform its obligations under the Scheme, by providing the promised consideration after the Scheme Shares have vested in it. Gyles J has referred to this issue in several cases, including Re Kaz Group Ltd [2004] FCA 738 , in which his Honour observed that it was "not entirely adequate" that scheme shares vest in the transferee corporation, leaving the former members with only the transferee corporation's covenant to pay. 7 The issue was again referred to by his Honour in Re Tempo Services Ltd (2005) 53 ACSR 523 (" Tempo "), another cash acquisition scheme by share transfer. His Honour said (at [5]): "The one matter to which I have drawn to attention of counsel is that, as a matter of principle, my view is that the security holders whose securities are divested by virtue of a scheme such as this should not have to bear any credit risk occasioned by the mechanism chosen so far as payment is concerned." In Tempo , the point was met by a provision for payment of the consideration into a Quistclose trust (cf Barclays Bank Ltd v Quistclose Investments Ltd [1968] UKHL 4 ; [1970] AC 567). 8 His Honour most recently considered the issue in SFE Corporation Limited [2006] FCA 670 (" SFE ") at [4]. Indeed, counsel has provided me with a copy of the scheme in SFE , which was, like the present Scheme, an acquisition for cash and shares. More accurately, it provided for an election between a Share Alternative and a Cash and Share Alternative. 9 In the present case, cl 6.1(a) of the Scheme provides that after the Court's approving order is made but before the "Implementation Date" (which is eight business days thereafter), MLB must deposit the aggregate amount of cash consideration payable to all Scheme Shareholders "in cleared funds in the trust account operated by WCG, to be held on trust for the Scheme Shareholders , except that any interest on the amount deposited shall be to MLB's account" [my emphasis]. Clause 6.2 of the Scheme provides that MLB's obligation to issue shares to the Scheme Shareholders is to be performed by its entering their names in the Share Register on the Implementation Date (and within five business days thereafter, dispatching to them an "uncertificated holding statement" relating to the number of MLB Shares issued to the addressee). This provision is generally similar to that found in cl 4.4 of the scheme that was approved in SFE .
Case: SFE Corporation Limited [2006] FCA 670
Outcome: cited
Various affidavits including an affidavit by Lucinda Hughes Turnbull, a director of WCG, to the effect that she is willing to act as chairperson at the proposed Scheme meeting, and an affidavit of Sean Martin Howard to the effect that he is willing to act as alternate chairperson. Ms Turnbull and Mr Howard disclose the holdings of shares in WCG by companies associated with themselves respectively. 5 Senior counsel for WCG has properly drawn my attention to two matters, which may be described as the "performance risk issue" and the "no encumbrances" clause. The performance risk issue 6 The "performance risk issue" refers to the risk that MLB will not perform its obligations under the Scheme, by providing the promised consideration after the Scheme Shares have vested in it. Gyles J has referred to this issue in several cases, including Re Kaz Group Ltd [2004] FCA 738 , in which his Honour observed that it was "not entirely adequate" that scheme shares vest in the transferee corporation, leaving the former members with only the transferee corporation's covenant to pay. 7 The issue was again referred to by his Honour in Re Tempo Services Ltd (2005) 53 ACSR 523 (" Tempo "), another cash acquisition scheme by share transfer. His Honour said (at [5]): "The one matter to which I have drawn to attention of counsel is that, as a matter of principle, my view is that the security holders whose securities are divested by virtue of a scheme such as this should not have to bear any credit risk occasioned by the mechanism chosen so far as payment is concerned." In Tempo , the point was met by a provision for payment of the consideration into a Quistclose trust (cf Barclays Bank Ltd v Quistclose Investments Ltd [1968] UKHL 4 ; [1970] AC 567). 8 His Honour most recently considered the issue in SFE Corporation Limited [2006] FCA 670 (" SFE ") at [4]. Indeed, counsel has provided me with a copy of the scheme in SFE , which was, like the present Scheme, an acquisition for cash and shares. More accurately, it provided for an election between a Share Alternative and a Cash and Share Alternative. 9 In the present case, cl 6.1(a) of the Scheme provides that after the Court's approving order is made but before the "Implementation Date" (which is eight business days thereafter), MLB must deposit the aggregate amount of cash consideration payable to all Scheme Shareholders "in cleared funds in the trust account operated by WCG, to be held on trust for the Scheme Shareholders , except that any interest on the amount deposited shall be to MLB's account" [my emphasis]. Clause 6.2 of the Scheme provides that MLB's obligation to issue shares to the Scheme Shareholders is to be performed by its entering their names in the Share Register on the Implementation Date (and within five business days thereafter, dispatching to them an "uncertificated holding statement" relating to the number of MLB Shares issued to the addressee). This provision is generally similar to that found in cl 4.4 of the scheme that was approved in SFE .
Case: Fisher &amp; Paykel Healthcare Pty Ltd v Avion Engineering Pty Ltd (1991) 22 IPR 1
Outcome: cited
The parties were not in dispute as to the principles that apply to the construction of the 981 Patent. I was referred to numerous authorities in which these principles have been clearly articulated, including Welch Perrin &amp; Co Pty Ltd v Worrel [1960] HCA 91 ; (1961) 106 CLR 588 ( 'Welch Perrin' ) at 610; Interlego AG v Toltoys Pty Ltd [1973] HCA 1 ; (1973) 130 CLR 461 ( 'Interlego' ) at 478 (see also Stephen J at first instance at 466); D&eacute;cor Corp Pty Ltd v Dart Industries Inc (1988) 13 IPR 385 at 400; Fisher &amp; Paykel Healthcare Pty Ltd v Avion Engineering Pty Ltd (1991) 22 IPR 1 at 18-19; Fresenius Medical Care Australia Pty Ltd v Gambro Pty Ltd (2005) 67 IPR 230 at 236 [39], 238 [52] and 245-246 [91]-[94]; Pfizer Overseas Pharmaceuticals v Ely Lilly &amp; Co (2005) 68 IPR 1 ( 'Pfizer' ) at 52-54 [247]-[250]; Kirin-Amgen Inc v Hoechst Marion Roussel Ltd (2004) 64 IPR 444 ( 'Kirin-Amgen' ) at 452-457 [27]-[35]; PhotoCure ASA v Queen's University at Kingston (2005) 216 ALR 41 ( 'PhotoCure' ) at 85 [172] and 85-86 [168]-[174]; Sachtler GmbH &amp; Co KG v RE Miller Pty Ltd (2005) 221 ALR 373 ( 'Sachtler' ) at 380-382 [39]-[42]; Clorox Australia Pty Ltd v International Consolidated Business Pty Ltd (2006) 68 IPR 254 ( 'Clorox' ) at 260-262 [13]-[22].
Case: Fresenius Medical Care Australia Pty Ltd v Gambro Pty Ltd (2005) 67 IPR 230
Outcome: cited
The parties were not in dispute as to the principles that apply to the construction of the 981 Patent. I was referred to numerous authorities in which these principles have been clearly articulated, including Welch Perrin &amp; Co Pty Ltd v Worrel [1960] HCA 91 ; (1961) 106 CLR 588 ( 'Welch Perrin' ) at 610; Interlego AG v Toltoys Pty Ltd [1973] HCA 1 ; (1973) 130 CLR 461 ( 'Interlego' ) at 478 (see also Stephen J at first instance at 466); D&eacute;cor Corp Pty Ltd v Dart Industries Inc (1988) 13 IPR 385 at 400; Fisher &amp; Paykel Healthcare Pty Ltd v Avion Engineering Pty Ltd (1991) 22 IPR 1 at 18-19; Fresenius Medical Care Australia Pty Ltd v Gambro Pty Ltd (2005) 67 IPR 230 at 236 [39], 238 [52] and 245-246 [91]-[94]; Pfizer Overseas Pharmaceuticals v Ely Lilly &amp; Co (2005) 68 IPR 1 ( 'Pfizer' ) at 52-54 [247]-[250]; Kirin-Amgen Inc v Hoechst Marion Roussel Ltd (2004) 64 IPR 444 ( 'Kirin-Amgen' ) at 452-457 [27]-[35]; PhotoCure ASA v Queen's University at Kingston (2005) 216 ALR 41 ( 'PhotoCure' ) at 85 [172] and 85-86 [168]-[174]; Sachtler GmbH &amp; Co KG v RE Miller Pty Ltd (2005) 221 ALR 373 ( 'Sachtler' ) at 380-382 [39]-[42]; Clorox Australia Pty Ltd v International Consolidated Business Pty Ltd (2006) 68 IPR 254 ( 'Clorox' ) at 260-262 [13]-[22].
Case: Pfizer Overseas Pharmaceuticals v Ely Lilly &amp; Co (2005) 68 IPR 1
Outcome: applied
The parties were not in dispute as to the principles that apply to the construction of the 981 Patent. I was referred to numerous authorities in which these principles have been clearly articulated, including Welch Perrin &amp; Co Pty Ltd v Worrel [1960] HCA 91 ; (1961) 106 CLR 588 ( 'Welch Perrin' ) at 610; Interlego AG v Toltoys Pty Ltd [1973] HCA 1 ; (1973) 130 CLR 461 ( 'Interlego' ) at 478 (see also Stephen J at first instance at 466); D&eacute;cor Corp Pty Ltd v Dart Industries Inc (1988) 13 IPR 385 at 400; Fisher &amp; Paykel Healthcare Pty Ltd v Avion Engineering Pty Ltd (1991) 22 IPR 1 at 18-19; Fresenius Medical Care Australia Pty Ltd v Gambro Pty Ltd (2005) 67 IPR 230 at 236 [39], 238 [52] and 245-246 [91]-[94]; Pfizer Overseas Pharmaceuticals v Ely Lilly &amp; Co (2005) 68 IPR 1 ( 'Pfizer' ) at 52-54 [247]-[250]; Kirin-Amgen Inc v Hoechst Marion Roussel Ltd (2004) 64 IPR 444 ( 'Kirin-Amgen' ) at 452-457 [27]-[35]; PhotoCure ASA v Queen's University at Kingston (2005) 216 ALR 41 ( 'PhotoCure' ) at 85 [172] and 85-86 [168]-[174]; Sachtler GmbH &amp; Co KG v RE Miller Pty Ltd (2005) 221 ALR 373 ( 'Sachtler' ) at 380-382 [39]-[42]; Clorox Australia Pty Ltd v International Consolidated Business Pty Ltd (2006) 68 IPR 254 ( 'Clorox' ) at 260-262 [13]-[22].