mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Taylor v ANZ Banking Group Ltd (1988) 6 ACLC 808
Outcome: cited
At the outset I set out some legal principles I rely upon for determining this proceeding: &#8226; APM bears the onus of proving its solvency: s 459C ; &#8226; In order to discharge that onus the Court should generally be presented with the "fullest and best" evidence of the financial position of APM: Commonwealth Bank of Australia v Begonia (1993) 11 ACLC 1075 at 1081; &#8226; Unaudited accounts and unverified claims of ownership or valuation are not ordinarily probative of solvency: Commissioner of Taxation v Simionato Holdings Pty Ltd (1997) 15 ACLC 477; Re Citic Commodity Trading Pty Ltd v JBL Enterprises (WA) Pty Ltd [1998] FCA 232 ; Leslie v Howship Holdings Pty Ltd (1997) 15 ACLC 459 at 463; &#8226; The nature of a company's assets, and its ability to convert those assets into cash within a relatively short time, at least to the extent of meeting all its debts as and when they fall due, must be considered in determining solvency: Rees v Bank of New South Wales [1964] HCA 47 ; (1964) 111 CLR 210; Re Tweeds Garages Ltd [1962] Ch 406 at 410; Simionato Holdings Pty Ltd 15 ACLC 477; Melbase Corporation Pty Ltd v Segenhoe Ltd (1995) 13 ACLC 823 at 832; Leslie v Howship Holdings Pty Ltd (1997) 15 ACLC at 465-466; &#8226; The appropriate test is the "cash flow test" rather than a "balance sheet test" of insolvency. The adoption of a cash flow test for solvency does not mean that the extent of the company's assets is irrelevant to the inquiry. The credit resources available to the company must also be taken into account: Sandell v Porter [1966] HCA 28 ; (1966) 115 CLR 666 at 671 per Barwick CJ (with whom McTiernan and Windeyer JJ agreed); Leslie v Howship Holdings Pty Ltd (1997) 15 ACLC at 466; Taylor v ANZ Banking Group Ltd (1988) 6 ACLC 808 at 812; &#8226; The question of solvency must be assessed at the date of the hearing, although relevant future events are not to be ignored: Leslie v Howship Holdings Pty Ltd (1997) 15 ACLC at 466-467.
Case: Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 47
Outcome: cited
The above considerations were all matters I could take into account in considering whether it was in the interests of justice that the proceeding be re-opened: see Smith v New South Wales Bar Association (No 2) [1992] HCA 36 ; (1992) 176 CLR 256 at 266-267, per Brennan, Dawson, Toohey JJ and Gaudron JJ; Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471 at 478-479, per Clarke JA (with whom Mahoney and Meagher JJA agree); Londish v Gulf Pacific Pty Ltd (1993) 45 FCR 128 at 138-139, per Neaves, Bruchett and Ryan JJ; Nikoloski v Ridge Consolidated Pty Ltd (1994) 116 FLR 192, per Higgins J; Boucher v Australian Securities Commission (1996) 71 FCR 122 at 126 at 132, per Spender, Drummond and Merkel JJ; Hindmarsh Medical Clinic v Hindmarsh Family Practice Pty Ltd (1997) 38 IPR 616 at 631-632, per Mansfield J.
Case: Wells v Wily [2004] NSWSC 607
Outcome: cited
In my view, the appropriate approach is to appoint the liquidator who has power to administer any trust assets (at least at the early states) (see Crest Realty Pty Ltd (No 2) (in liquidation) (1977) 1 NSWLR 664 and Wells v Wily [2004] NSWSC 607) , and the liquidator can approach the Court if any problems arise. I would not think it desirable to separate the function of the liquidator and any receiver of the trust assets in this case, and these functions should (at least initially) be fulfilled by the same person. The liquidator may apply to the Court if his appointment needs to be extended to that of receiver of the trust assets or if he needs further assistance. Equally, if any conflict arises because of the appointment of Mr McCann to other companies associated to APM, he can apply to seek directions on how to deal with that conflict: see ASIC v Westpoint Corporation Pty Ltd (2006) 56 ACSR 646 at 652.
Case: Woodgate v Leonard (2007) NSWSC 495
Outcome: followed
In Woodgate v Leonard [2007] NSWSC 495 , Barrett J said (at [37]): The jurisdiction discussed in these cases is an extraordinary and protective jurisdiction. It is separate from the jurisdiction involved in protection of confidential information and the enforcement of fiduciary duty. This is made clear, in particular, in the extract from the judgment of Whealy J just quoted. The concern is with the due and proper administration of justice in a proceeding before the court. The jurisdiction exists to ensure that the integrity of the proceeding is maintained. Identification of the means needed to maintain that integrity will, of course, depend on the nature of the proceeding and its likely course. See also Bahonko v Nurses Board of Victoria (No 3) [2007] FCA 491.
Case: Adler v Gardiner [2002] FCA 1141 , 43 ACSR 42
Outcome: cited
extent of the authority conferred &#8212; and the conclusion that those executing a warrant do not have an " unexaminable discretion " &#8212; was endorsed by Hely J in Adler v Gardiner [2002] FCA 1141 , 43 ACSR 42 at 33 to 34 as follows (citation omitted): The objective inquiry [39] The executing officer or constable assisting, has to be satisfied that there are reasonable grounds for suspecting that things seized will afford evidence as to the commission of an offence. The notion of reasonable grounds for a suspicion imports an objective test, but "reasonable" involves a value or normative judgment ( Greiner v Independent Commission Against Corruption (1992) 28 NSWLR 125 at 167), and there may well be legitimate differences of opinion as to what falls within the term, particularly when it is used in relation to a nebulous expression such as "suspicion". A court is not entitled to substitute its own opinion on that question for the opinion of the executing officer or constable assisting. That does not mean that the executing officer, or constable assisting, has an unexaminable discretion; it does mean, however, that the officer's decision is only impeachable if the decision was one which the officer could not lawfully reach on the materials before him or her ... ... [41] The onus, then, is on the applicants to establish that the seizure decisions taken in relation to the disputed documents were infected by reviewable error. ... Notwithstanding the conclusion that it is unnecessary to resolve the Applicants' submission as to the warrants being " bad on their face ", considerable concern is nevertheless expressed as to the guidance which warrants of such complexity provide to those executing them and in protecting those whose premises are being searched. It was perhaps in recognition of the complexity presented by the warrants that a briefing session was held prior to 15 April 2009 with a view to better informing those persons who would be involved in the events of the following day in executing the warrants issued.
Case: Australian Broadcasting Corporation v Cloran (1984) 4 FCR 151
Outcome: cited
one time it had been suggested that a " warrant should state the description of the offence in question with a particularity sufficient to enable the person whose premises are being searched to know the exact object of the search ": Parker v Churchill [1986] FCA 88 ; (1986) 9 FCR 334 at 348 per Jackson J; Australian Broadcasting Corporation v Cloran (1984) 4 FCR 151 at 153 per Lockhart J. But there has since been a retreat from such an exacting standard. The " precision required ", it has since been suggested, " may vary with the nature of the offence, the other circumstances revealed, the particularity achieved in other respects, and what is disclosed by the warrant, read as a whole, and taking account of its recitals ": Beneficial Finance Corporation Ltd v Commissioner of Australian Federal Police [1991] FCA 92 ; (1991) 31 FCR 523 at 543 per Burchett J. The objective of the requirement, however, has remained constant. The " requirement to state the offence exists to set bounds to the area of search which the execution of the warrant would involve . ... What is significant ... is that the warrant disclose the nature of the offence in question so as to indicate the area of search ": Harts Australia No 1 (1997) 75 FCR at 152 per Hill, Cooper and Whitlam JJ. Each of the limitations upon the power conferred by these provisions only assumes additional importance when it is recalled that a search warrant may be issued and executed in respect to premises occupied by persons other than those involved or suspected of being involved in criminal activity. Where the terms of s 3E are satisfied, a warrant may thus be issued in respect to premises occupied by persons unconnected with any crime. The fundamental interference with privacy which is authorised by a search warrant must be constantly borne in mind. Search warrants are " ... intrusions into the sanctity of a person's domain and concomitantly an interference with his privacy ... ": Different Solutions Pty Ltd v Australian Federal Police (No 2) [2008] FCA 1686 at [106] per Graham J (applying: Cloran (1984) 4 FCR at 154 per Lockhart J). Similarly, in TVW Ltd v Robinson [1964] WAR 33 at 37 Negus J observed: The issue of a search warrant is a very serious matter indeed because it authorizes the invasion of the privacy of the subject in his home or in his business premises. It necessarily involves an interference with the rights of an individual and affects his liberty. See also: Mitchell v New Plymouth Club (Incorporated ) [1958] NZLR 1070 at 1072. Although effect must be given to the terms employed in s 3E , it is also legitimate to bear in mind that the common law has long been " jealous of the prima facie immunity from seizure of papers and possessions ": George v Rockett [1990] HCA 26 ; (1990) 170 CLR 104 at 110 per Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ.
Case: Beneficial Finance Corporation Ltd v Commissioner of Australian Federal Police [1991] FCA 92 ; (1991) 31 FCR 523
Outcome: cited
one time it had been suggested that a " warrant should state the description of the offence in question with a particularity sufficient to enable the person whose premises are being searched to know the exact object of the search ": Parker v Churchill [1986] FCA 88 ; (1986) 9 FCR 334 at 348 per Jackson J; Australian Broadcasting Corporation v Cloran (1984) 4 FCR 151 at 153 per Lockhart J. But there has since been a retreat from such an exacting standard. The " precision required ", it has since been suggested, " may vary with the nature of the offence, the other circumstances revealed, the particularity achieved in other respects, and what is disclosed by the warrant, read as a whole, and taking account of its recitals ": Beneficial Finance Corporation Ltd v Commissioner of Australian Federal Police [1991] FCA 92 ; (1991) 31 FCR 523 at 543 per Burchett J. The objective of the requirement, however, has remained constant. The " requirement to state the offence exists to set bounds to the area of search which the execution of the warrant would involve . ... What is significant ... is that the warrant disclose the nature of the offence in question so as to indicate the area of search ": Harts Australia No 1 (1997) 75 FCR at 152 per Hill, Cooper and Whitlam JJ.
Case: Carter v Minister for Aboriginal Affairs [2005] FCA 667 , 143 FCR 383
Outcome: cited
the extent that there may have been some unstated assumption on the part of the Applicants at the outset that s 16 may have conferred some unconstrained power or authority on this Court to grant interlocutory relief, such an assumption must be rejected. In Johns v Australian Securities Commission [1993] HCA 56 ; (1993) 178 CLR 408 at 434 Brennan J observed (citations omitted): The relief which may be ordered under s 16(1)(d) of the AD(JR) Act is not so much at large that the Court may make an order against a party to litigation even though no ground for relief under the general law is established against that party. Section 16(1)(d) does not set the Court on an uncharted course without legal reference points by which to steer. ... However, s 16(1)(d) applies only when the making of an order is "necessary to do justice between the parties". That means justice according to law. It may be that a person who acquires information knowing that the information is imparted to him in breach of a statutory duty is in the same position as he would have been if the duty were an equitable obligation of confidence. ... If there be no right to relief against a person under the general law, that person does not become liable to have an adverse order made under s 16(1)(d) merely by reason of being joined as a respondent in an application to the Federal Court under the AD(JR) Act. ... See also: Minister for Immigration and Multicultural Affairs v Thiyagarajah [2000] HCA 9 at [34] , [2000] HCA 9 ; 199 CLR 343 at 356 to 357; Carter v Minister for Aboriginal Affairs [2005] FCA 667 at [39] , [2005] FCA 667 ; 143 FCR 383 at 395 to 396.
Case: Challenge Plastics Pty Ltd v Collector of Customs [1993] FCA 247 ; (1993) 42 FCR 397
Outcome: cited
present purposes, however, it is sufficient to consider the terms of s 3E and the terms of the warrants issued thereunder. When considering the ambit of a power to search and seize under a statutory warrant, it is to be recalled that the extent of that power " is that conferred by the statute, no more and no less ": Challenge Plastics Pty Ltd v Collector of Customs [1993] FCA 247 ; (1993) 42 FCR 397 at 408 to 409. Each of the requirements imposed by s 3E(5) and the other provisions in Pt 1AA , it is considered, must be construed according to the terms used and in a context where the purpose of search and seizure provisions is to provide for the gathering of information to determine whether offences have been committed and to facilitate proof of them: Hart [2002] FCAFC 392 at [65] , 124 FCR at 399 to 400 per French, Sackville and R D Nicholson JJ.
Case: Chic Fashions (West Wales) Ltd v Jones [1968] 2 QB 299
Outcome: cited
the purposes of the present interlocutory application, it is unnecessary to do more than refer to the breadth of the authority conferred by s 3F and to the constraints imposed upon that authority. The authority conferred is that conferred upon the " executing officer or a constable assisting ". It is not an authority to seize only that which a Court subsequently concludes falls within the terms of the warrant. But the extent of the authority conferred by s 3F is constrained by the requirement that the " executing officer " or " constable assisting " only seize that which he " believes on reasonable grounds " is relevantly either " evidential material in relation to an offence to which the warrant relates "; or " evidential material in relation to another offence that is an indictable offence " In the absence of the " executing officer " or " constable " forming such a belief on " reasonable grounds ", the warrant confers no authority to seize anything. No authority has been conferred by the legislature or by the warrants to enter a person's premises and to seize at random documents or things which may be believed to be of interest. There must always remain " reasonable grounds " for the belief set forth in s 3F(1)(d). Authority to seize things other than those described in the warrant (cf Chic Fashions (West Wales) Ltd v Jones [1968] 2 QB 299 at 313) is now expressly addressed in s 3F(1)(d)(ii). But that authority also remains confined by the requirement that there be " reasonable grounds " for the belief that is formed and by the requirement that the thing seized be " in relation to another offence that is an indictable offence ".
Case: Citibank Ltd v Commissioner of Taxation (1988) 83 ALR 144
Outcome: cited
to his attendance at those premises, Mr Caplice had a telephone conversation with the Eighth Respondent, Mr Alan Crowe. Mr Caplice requested an opportunity to " review any materials seized under the search warrants so that they can assert any claims they may have for legal professional privilege ". A request that " the search be suspended for a short period of time so that we can properly advise our clients and get instructions " was denied. A search undertaken with a view to precluding meaningful access to legal advice and the opportunity to claim legal professional privilege may render unlawful a search undertaken: Citibank Ltd v Commissioner of Taxation (1988) 83 ALR 144 ; Federal Commissioner of Taxation v Citibank Ltd (1989) 20 FCR 403. But such is not the present case.
Case: Crowley v Murphy [1981] FCA 31 ; (1981) 34 ALR 496
Outcome: applied
addressing the terms of the now-repealed s 10 in Crowley v Murphy [1981] FCA 31 ; (1981) 34 ALR 496 , Lockhart J addressed some of the principles relevant to the manner in which a search warrant is executed as follows: I will not attempt to state exhaustively the procedures that policemen should follow when executing search warrants. That would be both unnecessary and undesirable. What should be done must vary according to the circumstances of each case. But I shall endeavour to give some general guidance. First, like most statutory powers, the power of enforcing a search warrant must be exercised in good faith. Second, the power must be exercised for the purpose for which it was conferred. It must not be used for some ulterior purpose. If, for example, it is used to punish the person whose premises are to be entered and searched, plainly that is an ulterior purpose. Third, the power must be exercised fairly, having regard to all the circumstances. Fourth, it must be exercised having regard to those affected by its exercise and, in particular, to the rights of those persons. I shall return to this later. Fifth, the officer executing the warrant must strictly follow the directions contained in it and must not exceed the limits of the authority it confers. Northrop J agreed: (1981) 34 ALR at 505. The same principles, it is considered, are equally applicable to a warrant issued under s 3E and executed under s 3F.
Case: Different Solutions Pty Ltd v Australian Federal Police (No 2) [2008] FCA 1686
Outcome: cited
of the limitations upon the power conferred by these provisions only assumes additional importance when it is recalled that a search warrant may be issued and executed in respect to premises occupied by persons other than those involved or suspected of being involved in criminal activity. Where the terms of s 3E are satisfied, a warrant may thus be issued in respect to premises occupied by persons unconnected with any crime. The fundamental interference with privacy which is authorised by a search warrant must be constantly borne in mind. Search warrants are " ... intrusions into the sanctity of a person's domain and concomitantly an interference with his privacy ... ": Different Solutions Pty Ltd v Australian Federal Police (No 2) [2008] FCA 1686 at [106] per Graham J (applying: Cloran (1984) 4 FCR at 154 per Lockhart J). Similarly, in TVW Ltd v Robinson [1964] WAR 33 at 37 Negus J observed: The issue of a search warrant is a very serious matter indeed because it authorizes the invasion of the privacy of the subject in his home or in his business premises. It necessarily involves an interference with the rights of an individual and affects his liberty. See also: Mitchell v New Plymouth Club (Incorporated ) [1958] NZLR 1070 at 1072. Although effect must be given to the terms employed in s 3E , it is also legitimate to bear in mind that the common law has long been " jealous of the prima facie immunity from seizure of papers and possessions ": George v Rockett [1990] HCA 26 ; (1990) 170 CLR 104 at 110 per Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ.
Case: Federal Commissioner of Taxation v Citibank Ltd (1989) 20 FCR 403
Outcome: cited
to his attendance at those premises, Mr Caplice had a telephone conversation with the Eighth Respondent, Mr Alan Crowe. Mr Caplice requested an opportunity to " review any materials seized under the search warrants so that they can assert any claims they may have for legal professional privilege ". A request that " the search be suspended for a short period of time so that we can properly advise our clients and get instructions " was denied. A search undertaken with a view to precluding meaningful access to legal advice and the opportunity to claim legal professional privilege may render unlawful a search undertaken: Citibank Ltd v Commissioner of Taxation (1988) 83 ALR 144 ; Federal Commissioner of Taxation v Citibank Ltd (1989) 20 FCR 403. But such is not the present case.
Case: George v Rockett [1990] HCA 26 ; (1990) 170 CLR 104
Outcome: cited
of the limitations upon the power conferred by these provisions only assumes additional importance when it is recalled that a search warrant may be issued and executed in respect to premises occupied by persons other than those involved or suspected of being involved in criminal activity. Where the terms of s 3E are satisfied, a warrant may thus be issued in respect to premises occupied by persons unconnected with any crime. The fundamental interference with privacy which is authorised by a search warrant must be constantly borne in mind. Search warrants are " ... intrusions into the sanctity of a person's domain and concomitantly an interference with his privacy ... ": Different Solutions Pty Ltd v Australian Federal Police (No 2) [2008] FCA 1686 at [106] per Graham J (applying: Cloran (1984) 4 FCR at 154 per Lockhart J). Similarly, in TVW Ltd v Robinson [1964] WAR 33 at 37 Negus J observed: The issue of a search warrant is a very serious matter indeed because it authorizes the invasion of the privacy of the subject in his home or in his business premises. It necessarily involves an interference with the rights of an individual and affects his liberty. See also: Mitchell v New Plymouth Club (Incorporated ) [1958] NZLR 1070 at 1072. Although effect must be given to the terms employed in s 3E , it is also legitimate to bear in mind that the common law has long been " jealous of the prima facie immunity from seizure of papers and possessions ": George v Rockett [1990] HCA 26 ; (1990) 170 CLR 104 at 110 per Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ.
Case: Harts Australia Ltd v Commissioner, Australian Federal Police (1997) 75 FCR 145
Outcome: cited
sections are contained within Pt 1AA of the Crimes Act . That Part was incorporated into the Act by the Crimes (Search Warrants and Powers of Arrest) Amendment Act 1994 (Cth). Those amendments (in turn) had their origins in an interim report now known as the Gibbs Report (Attorney-General's Department, Review of Commonwealth Criminal Law, Fourth Interim Report: Offences Relating to the Administration of Justice, Offences Against the Government Involving Property or Money, Bribery and Corruption and Search Warrants (Attorney-General's Department, Canberra, 1990)). " That report and the pre-existing law form an essential part of the context relevant to the interpretation of Pt 1AA ": Harts Australia Ltd v Commissioner, Australian Federal Police (1997) 75 FCR 145 (' Harts Australia No 1 ') at 148 per Hill, Cooper and Whitlam JJ; Hart v Commissioner of Australian Federal Police [2002] FCAFC 392 (' Hart ') at [17] [2002] FCAFC 392 ; , 124 FCR 384 at 390 per French, Sackville and R D Nicholson JJ.