mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62
Outcome: cited
the courts do not easily reach this view as Dixon J observed in Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 at 91: A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process. I shall return to O 20 r 5 later in this judgment. Legislative developments with respect to bankruptcy and family law issues Both parties have made detailed submissions as to the operation of the Bankruptcy Act and the Family Law Act , including amending legislation. The difficulties which can arise where family law issues and bankruptcy issues interact have been the subject of numerous attempts at legislative resolution. These difficulties have consistently flowed from the uncertainty and hardship for either or both the creditors and non-bankrupt spouse arising from inconsistencies created between family law and bankruptcy law (cf para 9 Explanatory Memorandum, Bankruptcy and Family Law Legislation Amendment Bill 2004). Section 120 and section 121 of the Bankruptcy Act Section 120 and s 121 of the Bankruptcy Act both provide for certain types of transaction to be subsequently declared void as against a trustee in bankruptcy. Section 120 applies to transfers occurring within five years prior to the commencement of bankruptcy at an undervalue. Section 121 focuses on the intention with which the transferor effected the transaction, and is not subject to time limits. So far as relevant, s 120 of the Bankruptcy Act provides: Undervalued transactions Transfers that are void against trustee (1) A transfer of property by a person who later becomes a bankrupt (the transferor ) to another person (the transferee ) is void against the trustee in the transferor's bankruptcy if: (a) the transfer took place in the period beginning 5 years before the commencement of the bankruptcy and ending on the date of the bankruptcy; and (b) the transferee gave no consideration for the transfer or gave consideration of less value than the market value of the property. ... Exemptions (2) Subsection (1) does not apply to: (a) a payment of tax payable under a law of the Commonwealth or of a State or Territory; or (b) a transfer to meet all or part of a liability under a maintenance agreement or a maintenance order; or (c) a transfer of property under a debt agreement; or (d) a transfer of property if the transfer is of a kind described in the regulations.
Case: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125
Outcome: cited
order for the Court to stay a proceeding on the basis of abuse of process the Court must be satisfied that the case is: "so obviously untenable that it cannot possibly succeed"; "manifestly groundless"; "so manifestly faulty that it does not admit of argument"; "discloses a case which the Court is satisfied cannot succeed"; "under no possibility can there be a good cause of action"; [or] "be manifest that to allow them" (the pleadings) "to stand would involve useless expense". (Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 at 129)
Case: Goldsmith v Sperrings Ltd (1977) 1 WLR 478
Outcome: cited
observed by the majority of the High Court in Williams v Spautz [1992] HCA 34 ; (1992) 174 CLR 509 at 518, it is well established that Australian superior courts have inherent jurisdiction to stay proceedings which are an abuse of process. So, a superior court has power to prevent an abuse of process when process is predominantly used as a means of obtaining an advantage for which the proceedings were not intended ( Williams v Spautz [1992] HCA 34 ; (1992) 174 CLR 509 at 521-522, 529, Goldsmith v Sperrings Ltd (1977) 1 WLR 478 , Metall &amp; Rohstoff AG v Donaldson Inc [1990] 1 QB 391). A manifestation of this principle can be seen in cases where a litigant, having been unsuccessful in respect of one application, seeks to bring substantially the same application in the same or another court ( Reichel v Magrath (1889) 14 App Cas 665 at 668-669, Williams v Hunt [1905] 1 KB 512 , Wilson v Commonwealth of Australia [1999] FCA 1308 at [11] - [12] ), Lindsey v Philip Morris Ltd [2004] FCA 797 , Coffey v Secretary, Department of Social Security [1999] FCA 375 ; (1999) 86 FCR 434).
Case: Lindsey v Philip Morris Ltd [2004] FCA 797
Outcome: cited
observed by the majority of the High Court in Williams v Spautz [1992] HCA 34 ; (1992) 174 CLR 509 at 518, it is well established that Australian superior courts have inherent jurisdiction to stay proceedings which are an abuse of process. So, a superior court has power to prevent an abuse of process when process is predominantly used as a means of obtaining an advantage for which the proceedings were not intended ( Williams v Spautz [1992] HCA 34 ; (1992) 174 CLR 509 at 521-522, 529, Goldsmith v Sperrings Ltd (1977) 1 WLR 478 , Metall &amp; Rohstoff AG v Donaldson Inc [1990] 1 QB 391). A manifestation of this principle can be seen in cases where a litigant, having been unsuccessful in respect of one application, seeks to bring substantially the same application in the same or another court ( Reichel v Magrath (1889) 14 App Cas 665 at 668-669, Williams v Hunt [1905] 1 KB 512 , Wilson v Commonwealth of Australia [1999] FCA 1308 at [11] - [12] ), Lindsey v Philip Morris Ltd [2004] FCA 797 , Coffey v Secretary, Department of Social Security [1999] FCA 375 ; (1999) 86 FCR 434).
Case: Mateo v Official Trustee in Bankruptcy [2002] FCA 344 ; (2002) 117 FCR 179
Outcome: cited
first instance, Tamberlin J set aside the notice ( Mateo v Official Trustee in Bankruptcy [2002] FCA 344 ; (2002) 117 FCR 179). For the purposes of s 120 , his Honour held that the "transfer" in this case consisted of the whole transaction ranging from the signing of the consent orders through to the completion of the transfer of the interest by the husband. Further, full faith and credit must be given to the orders of the Family Court unless they are set aside. In relation to s 121 , the main purpose of the Family Court orders was to resolve outstanding matrimonial issues. The respondent points to the decision of the Full Court in Mateo [2003] FCAFC 26 ; (2003) 127 FCR 217 as authority for the proposition that, in the context of an application by a trustee in bankruptcy under s 121 , the "transfer" consists of the whole transaction ranging from the signing of the consent orders (or in this case, the execution of the financial agreement) through to the completion of the transfer of the interest by the husband, and that accordingly it is not possible for this Court to make a determination as to the transfer of the Carrara property without disturbing the financial agreement as a whole. However to the extent that this was the finding of the judge at first instance in Mateo (see in particular Mateo v Official Trustee in Bankruptcy [2002] FCA 344 ; (2002) 117 FCR 179 at 186) the Full Court were by no means supportive of this proposition (see for example Wilcox J at 235, Branson J at 249). Indeed as Wilcox J observed at 234: [Tamberlin J at first instance took the view that] it was artificial to "isolate one individual component of the transaction as in itself comprising the transfer", rather than to "look at the overall transaction which has been implemented". He found support for this approach in Silvera v Savic .
Case: Mentyn v Westpac Banking Corporation [2003] FCA 1521
Outcome: cited
in my view a more accurate articulation of the respondent's claim in these interlocutory proceedings is that the Federal Court lacks jurisdiction to deal with the applicant's claims, allegedly because the correct forum for the claim of the applicant is the Family Court, and because the applicant should have commenced proceedings pursuant to s 90K of the Family Law Act in the Family Court. Clearly this Court has power to permanently stay or dismiss proceedings where the Court has no jurisdiction because of lack of power, absence of legislative grant of jurisdiction, or otherwise ( Rahman v Director-General Department of Education &amp; Training [2005] NSWCA 285 , Ramsay v Accident Compensation Corporation [2007] NZCA 367 , Simundic v University of Newcastle [2007] FCA 676 , Mentyn v Westpac Banking Corporation [2003] FCA 1521 , Coffey v Secretary, Department of Social Security [1999] FCA 375 ; (1999) 86 FCR 434). A claim by a litigant that the court has no jurisdiction is however distinguishable from a claim that the litigation constitutes an abuse of process, unless of course the commencement of process for an improper purpose in the sense explained in Williams v Spautz [1992] HCA 34 ; (1992) 174 CLR 509 can also be identified. Absence of jurisdiction is commonly pleaded as an alternative to a claim for abuse of process. However even if I am wrong as to the basis of the respondent's claim in these interlocutory proceedings, the respondent has clearly contended that it was appropriate for the Court to permanently stay the substantive proceedings on the grounds that the proper course of the applicant in seeking to impugn the transfer of the Carrara property by Mr Jensen was to apply to the Family Court to have the entire financial agreement set aside pursuant to s 90K(1)(aa) of the Family Law Act . For reasons to which I now turn, I do not agree.
Case: Metall &amp; Rohstoff AG v Donaldson Inc [1990] 1 QB 391
Outcome: cited
observed by the majority of the High Court in Williams v Spautz [1992] HCA 34 ; (1992) 174 CLR 509 at 518, it is well established that Australian superior courts have inherent jurisdiction to stay proceedings which are an abuse of process. So, a superior court has power to prevent an abuse of process when process is predominantly used as a means of obtaining an advantage for which the proceedings were not intended ( Williams v Spautz [1992] HCA 34 ; (1992) 174 CLR 509 at 521-522, 529, Goldsmith v Sperrings Ltd (1977) 1 WLR 478 , Metall &amp; Rohstoff AG v Donaldson Inc [1990] 1 QB 391). A manifestation of this principle can be seen in cases where a litigant, having been unsuccessful in respect of one application, seeks to bring substantially the same application in the same or another court ( Reichel v Magrath (1889) 14 App Cas 665 at 668-669, Williams v Hunt [1905] 1 KB 512 , Wilson v Commonwealth of Australia [1999] FCA 1308 at [11] - [12] ), Lindsey v Philip Morris Ltd [2004] FCA 797 , Coffey v Secretary, Department of Social Security [1999] FCA 375 ; (1999) 86 FCR 434).
Case: Official Trustee v Lopatinsky [2003] FCAFC 109 ; (2003) 129 FCR 234
Outcome: cited
recently in Rambaldi (as Trustee of Bankrupt Estate of Volkov) v Volkov [2008] FCA 1957 a trustee in bankruptcy of the estate of a husband sought orders in the Federal Court setting aside the transfer of property from the husband to the wife prior to the husband's bankruptcy. The husband and wife had entered into a financial agreement which acknowledged the desire of the parties to make provisions to "recognise existing equitable interests" in those real properties. The Court found that the husband had held certain property on a constructive trust for the sole benefit of the wife prior to execution of the financial agreement. In relation to other property in relation to which the financial agreement purported to create and transfer to the wife an equitable interest, the Court considered the application of s 123(6) and s 121 of the Bankruptcy Act . Although Ryan J analysed the position prior to the 2005 amendments to both the Bankruptcy Act and the Family Law Act , for reasons I explain later in this judgment I consider that the reasoning in Rambaldi [2008] FCA 1957 in respect of the application of s 121 is useful in these proceedings. Specifically, his Honour found that: an equitable interest in the relevant property arose only following execution of the financial agreement between the parties pursuant to s 90C of the Family Law Act ; section 123(6) and s 121 of the Bankruptcy Act were relevant; the financial agreement, as a maintenance agreement, was prima facie entitled to the protection against invalidity afforded to it by s 123(6) of the Bankruptcy Act , however that protection was subject to s 121 of the Bankruptcy Act ; the financial agreement clearly effected a transfer, by a person who later became a bankrupt, of property to the non-bankrupt spouse. The main purpose of the bankrupt in entering into the financial agreement was to prevent the property becoming divisible among his creditors or to delay the process of making it available for division among his creditors; the non-bankrupt spouse provided no consideration for the transfer in the sense identified in Official Trustee v Lopatinsky [2003] FCAFC 109 ; (2003) 129 FCR 234 ; and the only consideration provided by the non-bankrupt spouse was the entry into the financial agreement, however because of the application of s 121(6) this was of no value for the purposes of s 121 of the Bankruptcy Act . Findings
Case: Rahman v Director-General Department of Education &amp; Training [2005] NSWCA 285
Outcome: cited
in my view a more accurate articulation of the respondent's claim in these interlocutory proceedings is that the Federal Court lacks jurisdiction to deal with the applicant's claims, allegedly because the correct forum for the claim of the applicant is the Family Court, and because the applicant should have commenced proceedings pursuant to s 90K of the Family Law Act in the Family Court. Clearly this Court has power to permanently stay or dismiss proceedings where the Court has no jurisdiction because of lack of power, absence of legislative grant of jurisdiction, or otherwise ( Rahman v Director-General Department of Education &amp; Training [2005] NSWCA 285 , Ramsay v Accident Compensation Corporation [2007] NZCA 367 , Simundic v University of Newcastle [2007] FCA 676 , Mentyn v Westpac Banking Corporation [2003] FCA 1521 , Coffey v Secretary, Department of Social Security [1999] FCA 375 ; (1999) 86 FCR 434). A claim by a litigant that the court has no jurisdiction is however distinguishable from a claim that the litigation constitutes an abuse of process, unless of course the commencement of process for an improper purpose in the sense explained in Williams v Spautz [1992] HCA 34 ; (1992) 174 CLR 509 can also be identified. Absence of jurisdiction is commonly pleaded as an alternative to a claim for abuse of process. However even if I am wrong as to the basis of the respondent's claim in these interlocutory proceedings, the respondent has clearly contended that it was appropriate for the Court to permanently stay the substantive proceedings on the grounds that the proper course of the applicant in seeking to impugn the transfer of the Carrara property by Mr Jensen was to apply to the Family Court to have the entire financial agreement set aside pursuant to s 90K(1)(aa) of the Family Law Act . For reasons to which I now turn, I do not agree.
Case: Ramsay v Accident Compensation Corporation [2007] NZCA 367
Outcome: cited
in my view a more accurate articulation of the respondent's claim in these interlocutory proceedings is that the Federal Court lacks jurisdiction to deal with the applicant's claims, allegedly because the correct forum for the claim of the applicant is the Family Court, and because the applicant should have commenced proceedings pursuant to s 90K of the Family Law Act in the Family Court. Clearly this Court has power to permanently stay or dismiss proceedings where the Court has no jurisdiction because of lack of power, absence of legislative grant of jurisdiction, or otherwise ( Rahman v Director-General Department of Education &amp; Training [2005] NSWCA 285 , Ramsay v Accident Compensation Corporation [2007] NZCA 367 , Simundic v University of Newcastle [2007] FCA 676 , Mentyn v Westpac Banking Corporation [2003] FCA 1521 , Coffey v Secretary, Department of Social Security [1999] FCA 375 ; (1999) 86 FCR 434). A claim by a litigant that the court has no jurisdiction is however distinguishable from a claim that the litigation constitutes an abuse of process, unless of course the commencement of process for an improper purpose in the sense explained in Williams v Spautz [1992] HCA 34 ; (1992) 174 CLR 509 can also be identified. Absence of jurisdiction is commonly pleaded as an alternative to a claim for abuse of process. However even if I am wrong as to the basis of the respondent's claim in these interlocutory proceedings, the respondent has clearly contended that it was appropriate for the Court to permanently stay the substantive proceedings on the grounds that the proper course of the applicant in seeking to impugn the transfer of the Carrara property by Mr Jensen was to apply to the Family Court to have the entire financial agreement set aside pursuant to s 90K(1)(aa) of the Family Law Act . For reasons to which I now turn, I do not agree.
Case: Reichel v Magrath (1889) 14 App Cas 665
Outcome: cited
observed by the majority of the High Court in Williams v Spautz [1992] HCA 34 ; (1992) 174 CLR 509 at 518, it is well established that Australian superior courts have inherent jurisdiction to stay proceedings which are an abuse of process. So, a superior court has power to prevent an abuse of process when process is predominantly used as a means of obtaining an advantage for which the proceedings were not intended ( Williams v Spautz [1992] HCA 34 ; (1992) 174 CLR 509 at 521-522, 529, Goldsmith v Sperrings Ltd (1977) 1 WLR 478 , Metall &amp; Rohstoff AG v Donaldson Inc [1990] 1 QB 391). A manifestation of this principle can be seen in cases where a litigant, having been unsuccessful in respect of one application, seeks to bring substantially the same application in the same or another court ( Reichel v Magrath (1889) 14 App Cas 665 at 668-669, Williams v Hunt [1905] 1 KB 512 , Wilson v Commonwealth of Australia [1999] FCA 1308 at [11] - [12] ), Lindsey v Philip Morris Ltd [2004] FCA 797 , Coffey v Secretary, Department of Social Security [1999] FCA 375 ; (1999) 86 FCR 434).
Case: Simundic v University of Newcastle [2007] FCA 676
Outcome: cited
in my view a more accurate articulation of the respondent's claim in these interlocutory proceedings is that the Federal Court lacks jurisdiction to deal with the applicant's claims, allegedly because the correct forum for the claim of the applicant is the Family Court, and because the applicant should have commenced proceedings pursuant to s 90K of the Family Law Act in the Family Court. Clearly this Court has power to permanently stay or dismiss proceedings where the Court has no jurisdiction because of lack of power, absence of legislative grant of jurisdiction, or otherwise ( Rahman v Director-General Department of Education &amp; Training [2005] NSWCA 285 , Ramsay v Accident Compensation Corporation [2007] NZCA 367 , Simundic v University of Newcastle [2007] FCA 676 , Mentyn v Westpac Banking Corporation [2003] FCA 1521 , Coffey v Secretary, Department of Social Security [1999] FCA 375 ; (1999) 86 FCR 434). A claim by a litigant that the court has no jurisdiction is however distinguishable from a claim that the litigation constitutes an abuse of process, unless of course the commencement of process for an improper purpose in the sense explained in Williams v Spautz [1992] HCA 34 ; (1992) 174 CLR 509 can also be identified. Absence of jurisdiction is commonly pleaded as an alternative to a claim for abuse of process. However even if I am wrong as to the basis of the respondent's claim in these interlocutory proceedings, the respondent has clearly contended that it was appropriate for the Court to permanently stay the substantive proceedings on the grounds that the proper course of the applicant in seeking to impugn the transfer of the Carrara property by Mr Jensen was to apply to the Family Court to have the entire financial agreement set aside pursuant to s 90K(1)(aa) of the Family Law Act . For reasons to which I now turn, I do not agree.
Case: Williams v Hunt [1905] 1 KB 512
Outcome: cited
observed by the majority of the High Court in Williams v Spautz [1992] HCA 34 ; (1992) 174 CLR 509 at 518, it is well established that Australian superior courts have inherent jurisdiction to stay proceedings which are an abuse of process. So, a superior court has power to prevent an abuse of process when process is predominantly used as a means of obtaining an advantage for which the proceedings were not intended ( Williams v Spautz [1992] HCA 34 ; (1992) 174 CLR 509 at 521-522, 529, Goldsmith v Sperrings Ltd (1977) 1 WLR 478 , Metall &amp; Rohstoff AG v Donaldson Inc [1990] 1 QB 391). A manifestation of this principle can be seen in cases where a litigant, having been unsuccessful in respect of one application, seeks to bring substantially the same application in the same or another court ( Reichel v Magrath (1889) 14 App Cas 665 at 668-669, Williams v Hunt [1905] 1 KB 512 , Wilson v Commonwealth of Australia [1999] FCA 1308 at [11] - [12] ), Lindsey v Philip Morris Ltd [2004] FCA 797 , Coffey v Secretary, Department of Social Security [1999] FCA 375 ; (1999) 86 FCR 434).
Case: Wilson v Commonwealth of Australia [1999] FCA 1380
Outcome: cited
observed by the majority of the High Court in Williams v Spautz [1992] HCA 34 ; (1992) 174 CLR 509 at 518, it is well established that Australian superior courts have inherent jurisdiction to stay proceedings which are an abuse of process. So, a superior court has power to prevent an abuse of process when process is predominantly used as a means of obtaining an advantage for which the proceedings were not intended ( Williams v Spautz [1992] HCA 34 ; (1992) 174 CLR 509 at 521-522, 529, Goldsmith v Sperrings Ltd (1977) 1 WLR 478 , Metall &amp; Rohstoff AG v Donaldson Inc [1990] 1 QB 391). A manifestation of this principle can be seen in cases where a litigant, having been unsuccessful in respect of one application, seeks to bring substantially the same application in the same or another court ( Reichel v Magrath (1889) 14 App Cas 665 at 668-669, Williams v Hunt [1905] 1 KB 512 , Wilson v Commonwealth of Australia [1999] FCA 1308 at [11] - [12] ), Lindsey v Philip Morris Ltd [2004] FCA 797 , Coffey v Secretary, Department of Social Security [1999] FCA 375 ; (1999) 86 FCR 434).