mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Cornall v AB (A Solicitor) [1995] 1 VR 372
Outcome: cited
the sake of completeness I should deal with two arguments raised on behalf of ASIC, each of which I would reject if I had been of a different view concerning the duty to accord natural justice. The first was that the decision here was a step or stage in a process, the end result of which would entail procedural fairness ( Ainsworth per Mason CJ, Dawson, Toohey and Gaudron JJ 175 CLR at 578; South Australia v O'Shea [1987] HCA 39 ; (1987) 163 CLR 378 per Mason CJ at 389). It was argued that the position was not dissimilar to the lack of any requirement to afford a hearing prior to the commencement of a prosecution of a like proceeding ( Barton v The Queen [1980] HCA 48 ; (1980) 147 CLR 75 at 95; Cornall v AB (A Solicitor) [1995] 1 VR 372 at 396 397; Commissioner of Police v Reid 16 NSWLR at 461; Australian Securities and Investments Commission v Plymin (No 3) [2002] VSC 358 ; (2002) 170 FLR 128 at 135 136). In the first place, it is doubtful whether there is a single decision making process of the kind referred to in the present circumstances. The decision by ASIC in relation to authorisation involves different questions and different issues than would a decision to issue a summons by the Court or the conduct of the proceeding itself (cf McHugh J in Johns v Australian Securities Commission 178 CLR at 473 474 and see Re Excel 52 FCR at 83 84 and 86). It is difficult to see how failure to accord natural justice in relation to the decision in question could be cured by later events. In the second place, the examination procedure is not designed to accord natural justice to a party in relation to any allegations made, directly or indirectly, against the examinee. The process is inquisitorial rather than adversarial. There is no case put against the examinee or any case in reply. As Windeyer J said in Rees v Kratzmann (114 CLR at 80): 'The honest conduct of the affairs of companies is a matter of great public concern to-day. If the legislature thinks that in this field the public interest overcomes some of the common law's traditional consideration for the individual, then effect must be given to the statute which embodies this policy.' (See also Hamilton v Oades [1989] HCA 21 ; (1989) 166 CLR 486.) The fact that the Court maintains considerable control over the examination does not change the information gathering nature of the function being performed. The analogy with the institution of Court proceedings is not apt.
Case: Hamilton v Oades [1989] HCA 21 ; (1989) 166 CLR 486
Outcome: cited
the sake of completeness I should deal with two arguments raised on behalf of ASIC, each of which I would reject if I had been of a different view concerning the duty to accord natural justice. The first was that the decision here was a step or stage in a process, the end result of which would entail procedural fairness ( Ainsworth per Mason CJ, Dawson, Toohey and Gaudron JJ 175 CLR at 578; South Australia v O'Shea [1987] HCA 39 ; (1987) 163 CLR 378 per Mason CJ at 389). It was argued that the position was not dissimilar to the lack of any requirement to afford a hearing prior to the commencement of a prosecution of a like proceeding ( Barton v The Queen [1980] HCA 48 ; (1980) 147 CLR 75 at 95; Cornall v AB (A Solicitor) [1995] 1 VR 372 at 396 397; Commissioner of Police v Reid 16 NSWLR at 461; Australian Securities and Investments Commission v Plymin (No 3) [2002] VSC 358 ; (2002) 170 FLR 128 at 135 136). In the first place, it is doubtful whether there is a single decision making process of the kind referred to in the present circumstances. The decision by ASIC in relation to authorisation involves different questions and different issues than would a decision to issue a summons by the Court or the conduct of the proceeding itself (cf McHugh J in Johns v Australian Securities Commission 178 CLR at 473 474 and see Re Excel 52 FCR at 83 84 and 86). It is difficult to see how failure to accord natural justice in relation to the decision in question could be cured by later events. In the second place, the examination procedure is not designed to accord natural justice to a party in relation to any allegations made, directly or indirectly, against the examinee. The process is inquisitorial rather than adversarial. There is no case put against the examinee or any case in reply. As Windeyer J said in Rees v Kratzmann (114 CLR at 80): 'The honest conduct of the affairs of companies is a matter of great public concern to-day. If the legislature thinks that in this field the public interest overcomes some of the common law's traditional consideration for the individual, then effect must be given to the statute which embodies this policy.' (See also Hamilton v Oades [1989] HCA 21 ; (1989) 166 CLR 486.) The fact that the Court maintains considerable control over the examination does not change the information gathering nature of the function being performed. The analogy with the institution of Court proceedings is not apt.
Case: Hare v Gladwin (1988) 82 ALR 307
Outcome: considered
for ASIC submitted that the decision of Sheppard J in Hare v Gladwin (1988) 82 ALR 307 is in point and should be followed. Section 316 of the Commonwealth Electoral Act 1918 (Cth) provided, inter alia, that an authorised officer of the Electoral Commission could issue a notice requiring the production of documents where the officer has reasonable grounds to believe that a person is capable of providing documents relating to a possible contravention of certain parts of the Act. Sheppard J held that the officer was not obliged to give a recipient an opportunity of making submissions as to why the notice should not be served or why it should be limited in a particular respect, nor to foreshadow to the recipient the nature of her belief in relation to a possible contravention of the Act. His Honour said (82 ALR at 330): 'She was acting in an investigatory capacity only. Nothing that she could do could affect any right or interest which he has or expose him, except by the operation of the Act itself, to conviction for any offence or the risk of such a conviction. In the light of the decision in Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550; 62 ALR 321, it is probably true to say that few statutes will be construed in such a manner as to deny to persons affected by action taken under them procedural fairness. The question in each case is what does procedural fairness require. In my opinion, it did not require Mrs Gladwin to give Mr Hare any opportunity of making any submissions to her at all about whether the notice should be issued or what the form of it ought to be.' That case is not on all fours with this case. On the one hand, it is a stronger case. The effect upon the recipient of the notice was direct and immediate rather than indirect. The right to maintain the privacy of documents was directly affected. On the other hand, there was no reference to damage to reputation, as public disclosure was apparently not involved. However, on the whole, it tends to support ASIC's position.
Case: Highstoke Pty Ltd v Hayes Knight GTO Pty Ltd [2007] FCA 13
Outcome: cited
private examination of persons pursuant to Div 2 of Pt 3 of the ASIC Act in aid of an investigation by ASIC pursuant to Div 1 of Pt 3 has a different history, role and purpose from examinations pursuant to Div 1 of Pt 5.9 of the Corporations Act . The latter are a long standing feature of insolvency administration, the history, nature and purpose of which have been analysed in many cases most recently by Lander J in Evans v Wainter Pty Limited [2005] FCAFC 114 ; (2005) 145 FCR 176 and French J in Highstoke Pty Ltd v Hayes Knight GTO Pty Ltd [2007] FCA 13 and need not be repeated. It is also submitted that the common law right to maintain silence will be encroached upon. It is not clear to me that the so called common law right to silence is a right or interest in the sense outlined in Annetts v McCann [1990] HCA 57 ; 170 CLR 596 . The only authority that was cited to support that proposition, apart from the reference in the passage from the reasons of Dawson J in Johns v Australian Securities Commission 178 CLR at 437, was that of Branson J in Re Cortaus Ltd (in liq); Sheahan v Joye (No 2) (1996) 20 ACSR 576 at 578. That was an examination of the balance of convenience on an application for a contested adjournment and did not involve the present issue. There is merit in the submission by counsel for ASIC that it is hardly correct to say that an officer of a company that is in external administration has any right to silence concerning the affairs of the company. On the contrary, the officer is bound by statute, when called upon, to provide information. That has been the case for a very long time ( Rees v Kratzmann [1965] HCA 49 ; 114 CLR 63; Evans v Wainter 145 FCR per Lander J at [44] [82]; per French J in Highstoke Pty Ltd v Hayes Knight GTO Pty Ltd [2007] FCA 13 at [46] [78]).
Case: Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1
Outcome: cited
reasons in Rio Tinto 151 FCR from [64] [68] make clear that it was a special case, depending upon the form of particulars given by the Commissioner. In my opinion, an argumentative submission that is responsive to an integer of the applicant's case and defensive of the respondent's position would not normally give rise to the type of inconsistency referred to by the High Court in Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1 and applied on the facts of Rio Tinto [2006] FCAFC 86 ; 151 FCR 341 (cf Bennett v Chief Executive Officer of the Australian Customs Service [2004] FCAFC 237 ; (2004) 140 FCR 101). I could see no special feature of the present case to displace that position.
Case: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259
Outcome: cited
seems to me that par 15 and par 16 state the outcome with sufficient clarity. The use which is sought to be made of par [23] is a good example of the tendency to parse and analyse administrative reports with a fine toothcomb contrary to Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259. A fair reading of the three paragraphs in question is that the complexity of the matter was such that the fact that ASIC had come to a particular conclusion did not preclude a different conclusion being arrived at by others, particularly with the benefit of the further examinations sought. In my opinion, the decision maker was not obliged to seek any further information. It needs to be borne steadily in mind that an unconstrained discretion was being exercised. There is a further difficulty with this argument. If the decision maker had drilled down to the Spear Report and the incorporated report it would have been apparent that the decision made by ASIC was based upon a number of debateable matters requiring judgment and that, indeed, the possibility of various forms of civil action were flagged but not precluded. The second way in which par 23 was attacked was that the reasoning was perverse and therefore unreasonable in the Wednesbury sense. It was said that complexity of itself provides no sensible basis for departing from the prior conclusion by ASIC itself. A matter could be complex but the outcome clear. The way in which I have held that par 23 should be understood was not unreasonable in any sense. There is, therefore, no need to explore the application of the Wednesbury principle in this context.
Case: Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Outcome: distinguished
attack was twofold. In the first place, it was said that the decision maker was obliged to seek more information to clarify par 23 ( Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 170 and other authorities which have applied Prasad ). It was suggested that the decision maker would need to drill down to ascertain upon what basis the decisions had been made and ascertain how clearly or strongly the conclusion had been reached and so on.
Case: Re Cortaus Ltd (in liq); Sheahan v Joye (No 2) (1996) 20 ACSR 576
Outcome: discussed
is also submitted that the common law right to maintain silence will be encroached upon. It is not clear to me that the so called common law right to silence is a right or interest in the sense outlined in Annetts v McCann [1990] HCA 57 ; 170 CLR 596 . The only authority that was cited to support that proposition, apart from the reference in the passage from the reasons of Dawson J in Johns v Australian Securities Commission 178 CLR at 437, was that of Branson J in Re Cortaus Ltd (in liq); Sheahan v Joye (No 2) (1996) 20 ACSR 576 at 578. That was an examination of the balance of convenience on an application for a contested adjournment and did not involve the present issue. There is merit in the submission by counsel for ASIC that it is hardly correct to say that an officer of a company that is in external administration has any right to silence concerning the affairs of the company. On the contrary, the officer is bound by statute, when called upon, to provide information. That has been the case for a very long time ( Rees v Kratzmann [1965] HCA 49 ; 114 CLR 63; Evans v Wainter 145 FCR per Lander J at [44] [82]; per French J in Highstoke Pty Ltd v Hayes Knight GTO Pty Ltd [2007] FCA 13 at [46] [78]).
Case: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6 ; (2003) 214 CLR 1
Outcome: cited
place of so called 'legitimate expectation' in administrative law has always been controversial. It was considered most recently by the High Court in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6 ; (2003) 214 CLR 1 per Gleeson CJ at [26] [38]; per McHugh and Gummow JJ at [47] [49], [61] [83] and [103] [106]; per Hayne J at [116] [122]; per Callinan J at [140] [148]. In my opinion, that discussion is inconsistent with the features in the dealings between the parties here that were identified as giving rise to or creating an obligation to give notice to the Administrators before exercising the statutory power in question. I should add that the ASIC publication concerning natural justice (Australian Securities and Investments Commission, Policy Statement 92: Procedural Fairness to Third Parties, Australian Securities and Investments Commission , Canberra, 1995) does no more than purport to give effect to the requirements of the law.
Case: South Australia v O'Shea [1987] HCA 39 ; (1987) 163 CLR 378
Outcome: cited
the sake of completeness I should deal with two arguments raised on behalf of ASIC, each of which I would reject if I had been of a different view concerning the duty to accord natural justice. The first was that the decision here was a step or stage in a process, the end result of which would entail procedural fairness ( Ainsworth per Mason CJ, Dawson, Toohey and Gaudron JJ 175 CLR at 578; South Australia v O'Shea [1987] HCA 39 ; (1987) 163 CLR 378 per Mason CJ at 389). It was argued that the position was not dissimilar to the lack of any requirement to afford a hearing prior to the commencement of a prosecution of a like proceeding ( Barton v The Queen [1980] HCA 48 ; (1980) 147 CLR 75 at 95; Cornall v AB (A Solicitor) [1995] 1 VR 372 at 396 397; Commissioner of Police v Reid 16 NSWLR at 461; Australian Securities and Investments Commission v Plymin (No 3) [2002] VSC 358 ; (2002) 170 FLR 128 at 135 136). In the first place, it is doubtful whether there is a single decision making process of the kind referred to in the present circumstances. The decision by ASIC in relation to authorisation involves different questions and different issues than would a decision to issue a summons by the Court or the conduct of the proceeding itself (cf McHugh J in Johns v Australian Securities Commission 178 CLR at 473 474 and see Re Excel 52 FCR at 83 84 and 86). It is difficult to see how failure to accord natural justice in relation to the decision in question could be cured by later events. In the second place, the examination procedure is not designed to accord natural justice to a party in relation to any allegations made, directly or indirectly, against the examinee. The process is inquisitorial rather than adversarial. There is no case put against the examinee or any case in reply. As Windeyer J said in Rees v Kratzmann (114 CLR at 80): 'The honest conduct of the affairs of companies is a matter of great public concern to-day. If the legislature thinks that in this field the public interest overcomes some of the common law's traditional consideration for the individual, then effect must be given to the statute which embodies this policy.' (See also Hamilton v Oades [1989] HCA 21 ; (1989) 166 CLR 486.) The fact that the Court maintains considerable control over the examination does not change the information gathering nature of the function being performed. The analogy with the institution of Court proceedings is not apt.
Case: Stead v State Government Insurance Commission [1986] HCA 54 ; (1986) 161 CLR 141
Outcome: cited
second argument was that if ASIC had notified the Administrators prior to the decision, so giving them the opportunity of making submissions in opposition, there is no reason to suppose that would have produced a different outcome ( Stead v State Government Insurance Commission [1986] HCA 54 ; (1986) 161 CLR 141). It was submitted that ASIC had received significant submissions from or on behalf of the Administrators in relation to the original investigation and in relation to the release of transcripts which said all that could be said, as was revealed by the nature of the response made when the authorisation was known. Counsel for ASIC submitted that the evidence suggested that ASIC took those considerations into account. Some of the difficulties of applying the Stead principle were discussed by McHugh, Gummow, Callinan and Heydon JJ in Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62 ; (2004) 221 CLR 1 at [34] . In the present case, the question was whether particular persons should be appointed as eligible applicants. I can see no evidence that that topic was addressed in the submissions made on behalf of the Administrators prior to the decision being made.
Case: Testro Bros Pty Ltd v Tait [1963] HCA 29 ; (1963) 109 CLR 353
Outcome: cited
[1992] HCA 10 ; 175 CLR 564 concerned publication of a damning report. The same can be said of Testro Bros Pty Ltd v Tait [1963] HCA 29 ; (1963) 109 CLR 353 that was effectively overruled by Annetts v McCann (per Mason CJ, Dean and McHugh JJ 170 CLR at 598) and Ainsworth (per Mason CJ, Dawson, Toohey and Gaudron JJ 175 CLR at 576 577).
Case: Attorney-General v Wentworth (1988) 14 NSWLR 481
Outcome: cited
Full Court referred to the principles laid down in Hunters Hill Municipal Council v Pedler [1976] 1 NSWLR 478; Attorney-General v Wentworth (1988) 14 NSWLR 481; Jones v Skyring [1992] HCA 39 ; (1992) 109 ALR 303; Horvath v Commonwealth Bank of Australia [1999] FCA 504 ; Commonwealth Bank of Australia v Heinrich [2003] FCA 540 ; and Granich &amp; Associates v Yap [2004] FCA 1567. It held that these cases accurately reflected the law on Order 21 r 2.
Case: Commonwealth Bank of Australia v Heinrich [2003] FCA 540
Outcome: cited
Full Court referred to the principles laid down in Hunters Hill Municipal Council v Pedler [1976] 1 NSWLR 478; Attorney-General v Wentworth (1988) 14 NSWLR 481; Jones v Skyring [1992] HCA 39 ; (1992) 109 ALR 303; Horvath v Commonwealth Bank of Australia [1999] FCA 504 ; Commonwealth Bank of Australia v Heinrich [2003] FCA 540 ; and Granich &amp; Associates v Yap [2004] FCA 1567. It held that these cases accurately reflected the law on Order 21 r 2.
Case: Freeman v National Australia Bank Ltd [2006] FCAFC 67
Outcome: discussed
Freeman v National Australia Bank Ltd [2006] FCAFC 67 a Full Court observed (at [24]-[25]) that existing authority established that in determining whether particular proceedings are in fact vexatious, a court may take account of proceedings in other courts where, for example, they have authoritatively resolved the particular issue against the person instituting the proceedings. The Full Court also noted that the expression "habitually and persistently" implies more than "frequently", and suggests a degree of stubbornness on the part of the person in question. The element "without any reasonable ground" is of course to be determined objectively. It is immaterial that the person may believe in the justice of his or her argument, and may not understand that the argument has been authoritatively rejected.
Case: Granich &amp; Associates v Yap [2004] FCA 1567
Outcome: cited
Full Court referred to the principles laid down in Hunters Hill Municipal Council v Pedler [1976] 1 NSWLR 478; Attorney-General v Wentworth (1988) 14 NSWLR 481; Jones v Skyring [1992] HCA 39 ; (1992) 109 ALR 303; Horvath v Commonwealth Bank of Australia [1999] FCA 504 ; Commonwealth Bank of Australia v Heinrich [2003] FCA 540 ; and Granich &amp; Associates v Yap [2004] FCA 1567. It held that these cases accurately reflected the law on Order 21 r 2.
Case: Henderson v Henderson (1843) 3 Hare 100; (1843) 67 ER 313
Outcome: applied
Singh is therefore confronted with the fact that, by reason of his failure to read the SSAT's reasons for decision, or to have them translated to him, he did not raise, on merits review, an argument that would have been open to him. This brings into play the estoppel discussed in Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 ; (1981) 147 CLR 589. There the High Court accepted as correct the extended principle expressed by Sir James Wigram VC in Henderson v Henderson (1843) 3 Hare 100 at 115; (1843) 67 ER 313 at 319: "where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time." In Anshun , the Court found that the principle laid down in Henderson extended beyond res judicata. That broader form of estoppel applies to this case. I note that Ryan J, in his reasons for directing non-acceptance of process given on 8 March 2006, relied upon Anshun . Had Mr Singh read the 13 May 2002 reasons for decision, he would have seen the sentence to which he now objects. He could then, as part of ordinary merits review, have challenged the correctness of the assertion contained within it, and arguably gained some support for his broader challenge to the 4 November 1999 decision. His failure to read the reasons for decision, whether through "negligence, inadvertence or even accident" led to his not having raised the point at a time when something could have been done about it. He cannot now, years later, having failed at all stages to demonstrate relevant legal error, come back to the Tribunal, and thence to this Court, with a point that should have been raised long before this.
Case: Horvath v Commonwealth Bank of Australia [1999] FCA 504
Outcome: cited
Full Court referred to the principles laid down in Hunters Hill Municipal Council v Pedler [1976] 1 NSWLR 478; Attorney-General v Wentworth (1988) 14 NSWLR 481; Jones v Skyring [1992] HCA 39 ; (1992) 109 ALR 303; Horvath v Commonwealth Bank of Australia [1999] FCA 504 ; Commonwealth Bank of Australia v Heinrich [2003] FCA 540 ; and Granich &amp; Associates v Yap [2004] FCA 1567. It held that these cases accurately reflected the law on Order 21 r 2.