mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Bishop v Bridgelands Securities Ltd (1990) ATPR SS41 -060
Outcome: cited
In fact, in Bishop v Bridgelands Securities Ltd (1990) ATPR SS41 -060 Wilcox J held that para (b) was not limited by reference to para (a) of r 2. I respectfully agree. Nonetheless, the first inquiry will always be whether the terms of para (a) are satisfied. If so, the Court will proceed to consider discretionary factors of the kind mentioned above. If not, the Court may still be persuaded in the particular circumstances of the case to exercise the discretion by granting leave, as happened in Bishop v Bridgelands, above. 27 Mr Knight could not have joined S &amp; S and Wiley at the outset because the facts giving rise to his claims against them (the publishing of the two books) occurred subsequently. 28 If a separate proceeding were brought by Mr Knight against S &amp; S and Wiley, it appears that some common questions of law and fact would arise in that proceeding and the present proceeding (see para (i) of r 2(a)), namely, questions relating to Mr Knight's reputation in Australia in connection with the name 'MYTHBUSTERS'. Apparently this will be a strongly contested issue in this proceeding. It may be, however, that even in relation to this issue, there would be differences between the two proceedings, one proceeding relating to Mr Knight's reputation with television viewers and the other relating to his reputation with the buyers and readers of books.
Case: Payne v Young [1979] HCA 39 ; (1980) 145 CLR 609
Outcome: cited
The rights to relief claimed in the two proceedings would clearly not be 'in respect of or arise out of the same transaction or series of transactions': cf Payne v Young [1979] HCA 39 ; (1980) 145 CLR 609. The evidentiary fields which would be covered by Mr Knight's claim against Beyond, Discovery, SBS and Foxtel in connection with the television series, and that covered by his claim against S &amp; S and Wiley in connection with publication of the two books, would, it seems, be quite different. 30 The inconvenience to the two groups of respondents of having to participate in a hearing in which a substantial number of the issues and a substantial part of the evidence would be no concern of theirs, must be weighed against the inconvenience to Mr Knight of having to prove his reputation (or reputations) in separate proceedings. 31 In my view, the weighing exercise favours the respondents. Mr Knight would not have been entitled under O 6 r 2 to join the publishers as respondents in this proceeding initially, and he should not be allowed to do so now.
Case: Allstate Explorations NL v Batepro Australia Pty Ltd [2004] NSWSC 261
Outcome: followed
principles which apply where a court is considering whether to appoint a provisional liquidator are well established and the following propositions can be extracted from the authorities: (a) the applicant for the appointment must satisfy the Court that there is a reasonable prospect that a winding-up order will be made at the final hearing: Australian Securities Commission v Solomon (1996) 19 ACSR 73 at 80; (b) an applicant must establish that there is good reason for the Court intervening prior to the final hearing of the winding-up application on the basis that the appointment of a provisional liquidator is required in the public interest or to preserve the status quo or to protect the company's assets from dissipation: Allstate Explorations NL v Batepro Australia Pty Ltd [2004] NSWSC 261 at [30] ; (c) the appointment of a provisional liquidator pending the determination of a winding-up application is a drastic intrusion into the affairs of a company and should not be made if other measures are adequate to preserve the status quo: Zempilas v JN Taylor Holdings Limited (No 2) (1990) 55 SASR 103 at 107; Lubavitch Mazal Pty Ltd v Yeshiva Properties No 1 Pty Ltd [2003] NSWSC 535 ; (2003) 47 ACSR 197 at [217] .
Case: Zempilas v JN Taylor Holdings Limited (No 2) (1990) 55 SASR 103
Outcome: followed
principles which apply where a court is considering whether to appoint a provisional liquidator are well established and the following propositions can be extracted from the authorities: (a) the applicant for the appointment must satisfy the Court that there is a reasonable prospect that a winding-up order will be made at the final hearing: Australian Securities Commission v Solomon (1996) 19 ACSR 73 at 80; (b) an applicant must establish that there is good reason for the Court intervening prior to the final hearing of the winding-up application on the basis that the appointment of a provisional liquidator is required in the public interest or to preserve the status quo or to protect the company's assets from dissipation: Allstate Explorations NL v Batepro Australia Pty Ltd [2004] NSWSC 261 at [30] ; (c) the appointment of a provisional liquidator pending the determination of a winding-up application is a drastic intrusion into the affairs of a company and should not be made if other measures are adequate to preserve the status quo: Zempilas v JN Taylor Holdings Limited (No 2) (1990) 55 SASR 103 at 107; Lubavitch Mazal Pty Ltd v Yeshiva Properties No 1 Pty Ltd [2003] NSWSC 535 ; (2003) 47 ACSR 197 at [217] .
Case: Lubavitch Mazal Pty Ltd v Yeshiva Properties No 1 Pty Ltd [2003] NSWSC 535 ; (2003) 47 ACSR 197
Outcome: followed
principles which apply where a court is considering whether to appoint a provisional liquidator are well established and the following propositions can be extracted from the authorities: (a) the applicant for the appointment must satisfy the Court that there is a reasonable prospect that a winding-up order will be made at the final hearing: Australian Securities Commission v Solomon (1996) 19 ACSR 73 at 80; (b) an applicant must establish that there is good reason for the Court intervening prior to the final hearing of the winding-up application on the basis that the appointment of a provisional liquidator is required in the public interest or to preserve the status quo or to protect the company's assets from dissipation: Allstate Explorations NL v Batepro Australia Pty Ltd [2004] NSWSC 261 at [30] ; (c) the appointment of a provisional liquidator pending the determination of a winding-up application is a drastic intrusion into the affairs of a company and should not be made if other measures are adequate to preserve the status quo: Zempilas v JN Taylor Holdings Limited (No 2) (1990) 55 SASR 103 at 107; Lubavitch Mazal Pty Ltd v Yeshiva Properties No 1 Pty Ltd [2003] NSWSC 535 ; (2003) 47 ACSR 197 at [217] .
Case: Australian Securities and Investments Commissions v Weerappah [2009] FCA 164
Outcome: cited
was satisfied that it was appropriate, and in a number of respects necessary to appoint a provisional liquidator of the third, fourth, fifth, sixth, eighth and ninth defendants for a number of reasons which included prima facie evidence of insolvency of some of the defendants. There was also a considerable body of evidence led by the Commission that there were numerous instances of inter-company transactions and loans involving substantial sums of money which were not documented. As I observed in my earlier reasons for judgment on 13 February 2009 when I put in place a number of restraining orders, all the corporate defendants in this proceeding, at relevant times, were controlled, or had involved in their activities, one or both of the first defendant, Mr Clestus Weerappah, and the second defendant, Ms Andrea Hawkins: Australian Securities and Investments Commissions v Weerappah [2009] FCA 164. I set out in those reasons for judgment a summary of relevant parts of evidence which was given by Ms Hawkins and Mr Weerappah. In par [31] of those reasons for judgment I said: "...I am particularly concerned about Ms Hawkins' seeming inability to identify the particular borrowers and lenders involved in a number of transactions which were the subject of evidence by her, and her inability to distinguish which company in the group of companies with which she was involved is entitled to receive, or obliged to pay moneys, or discharge liabilities of other companies in the group. Subsequent to the delivery of those reasons for judgment, Ms Hawkins swore two affidavits in which she explained a number of the financial transactions which are under investigation by the Commission. However, those affidavits, particularly in the light of other evidence relied upon by the Commission, still leave significant doubt and concern in my mind as to the credibility of Ms Hawkins' explanation for a number of those financial transactions, particularly those transactions which have not been documented properly or at all. The background to the commencement of this proceeding by the Commission is set out in my earlier reasons for judgment and I do not repeat that background. It should be read in conjunction with these reasons for judgment.
Case: Citrix Systems Inc v Telesystems Learning Pty Ltd (in liq) (1998) 28 ACSR 529
Outcome: referred to
In Citrix Systems Inc v Telesystems Learning Pty Ltd (in liq) (1998) 28 ACSR 529, Moore J made an order that a company be wound up in insolvency in circumstances where it was being wound up voluntarily, and there was no suggestion that an order terminating the voluntary winding up was necessary. 18 In the authorities, various reasons for making an order in such circumstances have been put forward and held to be sufficient. One reason which has commonly been put forward is that a change of liquidator is desirable. That reason will be sufficient if the liquidator has not given the appearance of being independent: Citrix Systems Inc v Telesystems Learning Pty Ltd (in liq) (supra) per Moore J at 535-537, but, on the other hand, a mere desire to replace a liquidator is not sufficient: Re Green (as liq of Australian Resources Ltd (in liq)) (supra). The fact that an insurance policy responding to claims for insolvent trading by directors may cover such claims only if the liquidator is appointed by the court may be a sufficient reason: Re Green (as liq of Australian Resources Ltd (in liq)) (supra), as may the fact that a charge or certain dispositions of property may only be challenged if the court has ordered the company to be wound up under s 459A: Carter (as liq of New Tel Ltd (in liq)) v New Tel Ltd (in liq) (supra).
Case: Re Green (as liq of Australian Resources Ltd (in liq)) (2004) 52 ACSR 452
Outcome: referred to
In Re Green (as liq of Australian Resources Ltd (in liq) (2004) 52 ACSR 452, Barrett J made an order that the company be wound up in insolvency in circumstances where it was the subject of a creditors' voluntary winding up arising from a voluntary administration under Pt 5.3A and there was no suggestion that an order terminating the voluntary winding up was necessary. 16 In the circumstances, the Registrar's lack of power to make orders under s 482 is no obstacle to her power to make an order winding up the company in insolvency. 17 A court will not make an order winding up a company in insolvency in circumstances in which the company is already the subject of creditors' voluntary winding up unless there is good reason to do so: Carter (as liq of New Tel Ltd (in liq)) v New Tel Ltd (in liq) (2003) 44 ACSR 661 per Austin J at 663(5); Re Green (as liq of Australian Resources Ltd (in liq)) (supra) per Barrett J at 453 [5]. The reason for this is that, in the ordinary case, there is little practical difference between a creditors' voluntary winding up and a form of winding up imposed by order of the court. 18 In the authorities, various reasons for making an order in such circumstances have been put forward and held to be sufficient. One reason which has commonly been put forward is that a change of liquidator is desirable. That reason will be sufficient if the liquidator has not given the appearance of being independent: Citrix Systems Inc v Telesystems Learning Pty Ltd (in liq) (supra) per Moore J at 535-537, but, on the other hand, a mere desire to replace a liquidator is not sufficient: Re Green (as liq of Australian Resources Ltd (in liq)) (supra). The fact that an insurance policy responding to claims for insolvent trading by directors may cover such claims only if the liquidator is appointed by the court may be a sufficient reason: Re Green (as liq of Australian Resources Ltd (in liq)) (supra), as may the fact that a charge or certain dispositions of property may only be challenged if the court has ordered the company to be wound up under s 459A: Carter (as liq of New Tel Ltd (in liq)) v New Tel Ltd (in liq) (supra).
Case: Carter (as liq of New Tel Ltd (in liq) v New Tel Ltd (in liq) (2003) 44 ACSR 661
Outcome: referred to
A court will not make an order winding up a company in insolvency in circumstances in which the company is already the subject of creditors' voluntary winding up unless there is good reason to do so: Carter (as liq of New Tel Ltd (in liq)) v New Tel Ltd (in liq) (2003) 44 ACSR 661 per Austin J at 663(5); Re Green (as liq of Australian Resources Ltd (in liq)) (supra) per Barrett J at 453 [5]. The reason for this is that, in the ordinary case, there is little practical difference between a creditors' voluntary winding up and a form of winding up imposed by order of the court.
Case: Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321
Outcome: cited
10(2) should also be read with s 16 of the AD(JR) Act which makes it clear that the grant of relief pursuant to the AD(JR) Act is discretionary: Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 per Mason CJ at 338; and Wyeth Australia Pty Ltd v Minister for Health &amp; Aged Care (2000) 61 ALD 372; [2000] FCA 330.
Case: Comcare v Sassella [2001] FCA 1514 ; (2001) 34 AAR 142
Outcome: approved
respondents submit that with respect to an application before this Court to review the second respondent's decision of 5 May 2005 to direct the applicant to attend a psychiatric assessment under subs 36(3) of the SRC Act, the proceedings in the AAT make adequate provision for this decision to be reviewed on its merits: see Comcare v Sassella [2001] FCA 1514 ; (2001) 34 AAR 142. In the circumstances, the respondents submit that it would be appropriate for the Court to exercise its discretion under subs 10(2)(b) of the AD(JR) Act and refuse to grant this part of the application. Section 10 of the AD(JR) Act, so far as is relevant, provides: '10(1) The rights conferred by sections 5, 6 and 7 on a person to make an application to the Federal Court or the Federal Magistrates Court in respect of a decision, in respect of conduct engaged in for the purpose of making a decision or in respect of a failure to make a decision: (a) are in addition to, and not in derogation of, any other rights that the person has to seek a review, whether by the court, by another court, or by another tribunal, authority or person, of that decision, conduct or failure; and ... (2) Notwithstanding subsection (1): ... (b) the Federal Court or the Federal Magistrates Court may, in its discretion, refuse to grant an application under section 5, 6 or 7 that was made to the court in respect of a decision, in respect of conduct engaged in for the purpose of making a decision, or in respect of a failure to make a decision, for the reason: (i) that the applicant has sought a review by the court, or by another court, of that decision, conduct or failure otherwise than under this Act; or (ii) that adequate provision is made by any law other than this Act under which the applicant is entitled to seek a review by the court, by another court, or by another tribunal, authority or person, of that decision, conduct or failure. (3) In this section, review includes a review by way of reconsideration, re-hearing, appeal, the grant of an injunction or of a prerogative or statutory writ or the making of a declaratory or other order.'
Case: Wyeth Australia Pty Ltd v Minister for Health &amp; Aged Care (2000) 61 ALD 372; [2000] FCA 330 
Outcome: cited
10(2) should also be read with s 16 of the AD(JR) Act which makes it clear that the grant of relief pursuant to the AD(JR) Act is discretionary: Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 per Mason CJ at 338; and Wyeth Australia Pty Ltd v Minister for Health &amp; Aged Care (2000) 61 ALD 372; [2000] FCA 330.
Case: General Steel Industries Inc v Commissioner of Railways ( NSW ) [1964] HCA 69 ; (1964) 112 CLR 125
Outcome: cited
The standard to be applied before a pleading is struck out is that the claim must be 'so clearly untenable that it cannot possibly succeed': General Steel Industries Inc v Commissioner of Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 at 130. I am conscious that this is an early stage of the proceeding. Bearing in mind what the Amended Statement of Claim states concerning the relationship between the brothers and their companies, I am not prepared to conclude at this stage that the claim of wrongful interference with contractual rights is so untenable that it cannot possibly succeed. 10 As to the question whether or not the claim is properly pleaded, in my view there is no deficiency in the pleading: the material facts are pleaded and particulars are provided in support of the claim. It is simply a question of whether the facts alleged and the particulars provided make out a tenable claim. I am satisfied that the claim is sufficiently arguable that it should not be struck out. 11 I turn to deal with the causes of action concerning the allegation that the third applicant's plant breeder's rights have been infringed. The attack on this part of the pleading was based on submissions which, at least to some extent, involved a misapprehension of what is required by the rules of pleading and the authorities. In the first place, the respondents submitted (by reference to the paragraph concerning the Rich Lady plant breeder's rights allegations) that allegations in paragraphs 34 to 38 were in the nature of conclusions of law. In my opinion, that characterisation is not apposite. Paragraphs 34 to 38 make allegations of material fact, and are expressed in language which reflects the facts required to be established under ss 3, 11 and 53(1)(a) of the PBR Act, in order to establish an infringement of plant breeder's rights. That does not mean that what is alleged is a conclusion of law.
Case: Dare v Pulham [1982] HCA 70 ; (1982) 148 CLR 658
Outcome: cited
Order 11 r 2(a) of the Federal Court Rules ('the Rules') requires that a pleading shall contain only 'a statement in summary form of the material facts on which the party relies, but not the evidence by which those facts are to be proved'. The purpose of pleadings is to define the issues and to inform the other parties of the case that they must meet: Dare v Pulham [1982] HCA 70 ; (1982) 148 CLR 658 at 664. In distinguishing between material facts and evidence, the pleader must choose an appropriate level of generality in which to express the material facts that is consistent with the purposes to be achieved by the pleadings.
Case: Scott v Beneficial Finance Corporation Ltd (unreported, Burchett J, 14 December 1996)
Outcome: cited
The Rules do not compel the pleader to adopt so detailed an approach to the identification of material facts that it would unduly lengthen or complicate a pleading, or, to use the language of Burchett J in Scott v Beneficial Finance Corporation Ltd (unreported, Burchett J, 14 December 1996), throw up 'an impenetrable forest of detail'. A statement of claim is not defective merely because it pleads what might be said to be conclusions of fact at a higher level of generality than the primary facts that must be proved by evidence. So much clearly appears from the decision of French J in Kernel Holdings Pty Ltd v Rothmans of Pall Mall (Australia) Pty Ltd (1991) 217 ALR 171 at 173; see also BWK Elders Australia Pty Ltd v Westgate Wool Co Pty Ltd (No 2) [2002] ATPR 41-860 at 44,748 [15] per Mansfield J.
Case: Kernel Holdings Pty Ltd v Rothmans of Pall Mall (Australia) Pty Ltd (1991) 217 ALR 171
Outcome: cited
The Rules do not compel the pleader to adopt so detailed an approach to the identification of material facts that it would unduly lengthen or complicate a pleading, or, to use the language of Burchett J in Scott v Beneficial Finance Corporation Ltd (unreported, Burchett J, 14 December 1996), throw up 'an impenetrable forest of detail'. A statement of claim is not defective merely because it pleads what might be said to be conclusions of fact at a higher level of generality than the primary facts that must be proved by evidence. So much clearly appears from the decision of French J in Kernel Holdings Pty Ltd v Rothmans of Pall Mall (Australia) Pty Ltd (1991) 217 ALR 171 at 173; see also BWK Elders Australia Pty Ltd v Westgate Wool Co Pty Ltd (No 2) [2002] ATPR 41-860 at 44,748 [15] per Mansfield J.
Case: BWK Elders Australia Pty Ltd v Westgate Wool Co Pty Ltd (No 2) [2002] ATPR 41-860
Outcome: cited
The Rules do not compel the pleader to adopt so detailed an approach to the identification of material facts that it would unduly lengthen or complicate a pleading, or, to use the language of Burchett J in Scott v Beneficial Finance Corporation Ltd (unreported, Burchett J, 14 December 1996), throw up 'an impenetrable forest of detail'. A statement of claim is not defective merely because it pleads what might be said to be conclusions of fact at a higher level of generality than the primary facts that must be proved by evidence. So much clearly appears from the decision of French J in Kernel Holdings Pty Ltd v Rothmans of Pall Mall (Australia) Pty Ltd (1991) 217 ALR 171 at 173; see also BWK Elders Australia Pty Ltd v Westgate Wool Co Pty Ltd (No 2) [2002] ATPR 41-860 at 44,748 [15] per Mansfield J.
Case: Dart Industries Inc v David Jones Ltd [1990] AIPC 90-689
Outcome: considered
Mr Caine, senior counsel for the applicants, referred me to several authorities dealing with a like provision to O 58 r 27(1) concerning patent pleadings: see s 117 of the Patents Act 1990 (Cth) and Dart Industries Inc v David Jones Ltd [1990] AIPC 90-689 (' Dart v David Jones' ); and Dart Industries Inc v Grace Bros Pty Ltd (1990) 18 IPR 87 (' Dart v Grace Bros' ). 24 In Dart v David Jones , King J considered the sufficiency of a pleading and particulars of patent infringement which alleged that the plaintiff retailer had possessed for sale, offered for sale, offered for supply, sold or supplied certain press type sealed containers. His Honour referred to the equivalent provision of the Industrial Property Rules (Vic) and concluded that the particulars were adequate, having regard to the pre-discovery stage of the proceedings: at 36,412-36,413. His Honour concluded that the particulars were sufficient to apprise the other side of the nature of the case they had to meet. King J added that, on the face of it, a marketing company such as David Jones should know what it has sold, or should have access to records from which such information may be ascertained: at 36,414.
Case: Rainsford v Victoria [2001] FMCA 115
Outcome: cited
The first proceeding was commenced in this Court against the State and concerned the transport claim only. It was remitted to the Federal Magistrates Court on 28 September 2001. In the Federal Magistrates Court McInnis FM delivered judgment on 28 November 2001 dismissing Mr Rainsford's application on the grounds that the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (HREOC Act) and the DDA did not bind the State of Victoria: Rainsford v Victoria [2001] FMCA 115. Subsequent to this order, the HREOC Act was amended retrospectively to bind the State. Mr Rainsford appealed to the Full Federal Court which, by consent, ordered that the appeal be allowed and the matter remitted to the Federal Magistrates Court.