mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Walker v Citigroup Global Markets Australia Pty Ltd [2006] FCAFC 101
Outcome: cited
Boston argued that GE Capital had to take the allegations in the statement of claim at their highest in an argument of the present kind. It pointed to the decision of the Full Court in Walker v Citigroup Global Markets Australia Pty Ltd [2006] FCAFC 101 at [77] which held that where there were inconsistent terms within the same contract, some being standard form terms while others were specially framed with the individual circumstances in mind, it will normally be appropriate to give greater effect to the specially negotiated terms. Here, new Boston had alleged that the promise for 25% or 282 field calls was contractual, and that its claim was clearly articulated. I am not sure that I could accept the clarity of the articulation in all respects, but the essential formulation was certainly able to be discerned in most instances. New Boston argued that s 31A could not require both parties to put on evidence in detail or to conduct a mini trial. It submitted that it was not necessary for the case to be hopeless or bound to fail for it to have no reasonable prospect of success, but that the wording of s 31A did no more to change the previous law on the availability of summary remedies.
Case: Warwick Entertainment Centre Pty Limited v Alpine Holdings Pty Limited (2005) 224 ALR 134 
Outcome: cited
Warwick Entertainment Centre Pty Limited v Alpine Holdings Pty Limited (2005) 224 ALR 134, the Court of Appeal of the Supreme Court of Western Australia held that it may not have been unreasonable for a party, who had been induced to enter into a contract by misrepresentations in breach of statutory norms such as s 52 of the Act, to affirm the contract (see e.g. 224 ALR at 152 [76] per Steytler P). However, here, new Boston did not have any representations made to it. By voluntarily entering into some new arrangements with old Boston, it could hardly be said to have any damage to it caused by the breach of GE Capital's obligations owed to old Boston. In my opinion any such contention is unarguably bad.
Case: Second Sight v Novell UK [1995] RPC 423
Outcome: followed
Although no Australian decision has been cited to support the contention of Gallo Winery , reliance is placed upon Second Sight v Novell UK [1995] RPC 423. There in issue was s 32(1) of the Trade Marks Act 1938 (UK) which provided as follows: Any person aggrieved ... by any entry made in the register without sufficient cause or by any entry wrongly remaining on the register ... may apply in the prescribed manner to the Court ... or to the Registrar, and the tribunal may make such order for ... expunging or varying the entry as the tribunal may think fit. Of that provision, Lightman J observed at 428 9: The issue is (by common consent) one of statutory construction of sections 26 and 32 in the context of the Trade Marks Act 1938 as a whole. Specific provision is made in the Trade Marks Act 1938 where an event or decision is to have retrospective effect (see: e.g. section 19). Likewise specific provision is made in the Trade Marks Act 1994 (see e.g. section 46(6)). I can find neither in the language used nor in principle any grounds upon which it can sensibly be held that such a determination under an application under section 26 or section 32 can have any retrospective effect. ... This decision also provides some support for the conclusion reached. Lion Nathan did not point to any Australian decision in which an order of the kind that it now seeks has previously been made (even if the question of statutory construction now in issue was not debated).
Case: Darwin Broadcasters Pty Ltd v Australian Broadcasting Tribunal (1990) 21 FCR 524
Outcome: followed
On the hearing there was some discussion as to whether the 21 day period expires today 7 February 2007 or tomorrow 8 February 2007. The period of 21 days expires today, 7 February 2007 because references in statutes to periods 'beginning on' or 'commencing on' a particular day or date, are calculated on the basis that that day or date is counted as the first day of the period: Darwin Broadcasters Pty Ltd v Australian Broadcasting Tribunal (1990) 21 FCR 524 at 526-527; Watson v Uniframes Limited (1994) 55 FCR 556 at 560; Re Madden (1996) 131 FLR 430 at 432-434. Neither s 105 of the Act nor s 36(1) of the Acts Interpretation Act 1901 (Cth) is relevant, because they are concerned with the expressions 'before' and 'after' (s 105) and 'from' (s36(1)). I note, however, that the line of authority in the cases just cited is consistent with s 3(2) of the Acts Interpretation Act 1901 (Cth), which provides that where an Act or instrument is expressed to come into operation 'on' a particular day, it shall come into operation 'immediately on the expiration of the last preceding day'. Similarly, the 21 day period here began immediately on the expiration of 17 January 2007 and ends immediately before the beginning of 8 February 2007.
Case: Watson v Uniframes Limited (1994) 55 FCR 556
Outcome: followed
On the hearing there was some discussion as to whether the 21 day period expires today 7 February 2007 or tomorrow 8 February 2007. The period of 21 days expires today, 7 February 2007 because references in statutes to periods 'beginning on' or 'commencing on' a particular day or date, are calculated on the basis that that day or date is counted as the first day of the period: Darwin Broadcasters Pty Ltd v Australian Broadcasting Tribunal (1990) 21 FCR 524 at 526-527; Watson v Uniframes Limited (1994) 55 FCR 556 at 560; Re Madden (1996) 131 FLR 430 at 432-434. Neither s 105 of the Act nor s 36(1) of the Acts Interpretation Act 1901 (Cth) is relevant, because they are concerned with the expressions 'before' and 'after' (s 105) and 'from' (s36(1)). I note, however, that the line of authority in the cases just cited is consistent with s 3(2) of the Acts Interpretation Act 1901 (Cth), which provides that where an Act or instrument is expressed to come into operation 'on' a particular day, it shall come into operation 'immediately on the expiration of the last preceding day'. Similarly, the 21 day period here began immediately on the expiration of 17 January 2007 and ends immediately before the beginning of 8 February 2007.
Case: Re Madden (1996) 131 FLR 430
Outcome: followed
On the hearing there was some discussion as to whether the 21 day period expires today 7 February 2007 or tomorrow 8 February 2007. The period of 21 days expires today, 7 February 2007 because references in statutes to periods 'beginning on' or 'commencing on' a particular day or date, are calculated on the basis that that day or date is counted as the first day of the period: Darwin Broadcasters Pty Ltd v Australian Broadcasting Tribunal (1990) 21 FCR 524 at 526-527; Watson v Uniframes Limited (1994) 55 FCR 556 at 560; Re Madden (1996) 131 FLR 430 at 432-434. Neither s 105 of the Act nor s 36(1) of the Acts Interpretation Act 1901 (Cth) is relevant, because they are concerned with the expressions 'before' and 'after' (s 105) and 'from' (s36(1)). I note, however, that the line of authority in the cases just cited is consistent with s 3(2) of the Acts Interpretation Act 1901 (Cth), which provides that where an Act or instrument is expressed to come into operation 'on' a particular day, it shall come into operation 'immediately on the expiration of the last preceding day'. Similarly, the 21 day period here began immediately on the expiration of 17 January 2007 and ends immediately before the beginning of 8 February 2007.
Case: Fox v Percy [2003] HCA 22 ; (2003) 214 CLR 118
Outcome: cited
Ms Klewer has had every opportunity to present submissions, including numerous written submissions, in support of the appeal. Other than to reassert the fact that she holds the Korora property on trust for Robert Klewer which his Honour did not accept, she has not suggested any error on the part of the Federal Magistrate in respect of his Honour's finding that there was no trust. Ms Klewer has not suggested that his Honour's findings of fact in relation to the alleged trust were ' glaringly improbable ' or that his Honour had in some way ' failed to use or ... palpably misused his advantage ' as the trial judge ( Fox v Percy [2003] HCA 22 ; (2003) 214 CLR 118). 45 In her oral submissions on 8 October 2008, Ms Klewer asserts the existence of a trust, express, implied or constructive. She also asserts that there is a written will, which accords with a testamentary disposition of the Korora property. 46 Ms Klewer maintains that she made a 'living will' and intended to and did transfer the Korora property to Robert Klewer, so that she held the property in trust for him. However, apart from an assertion that a written version must exist somewhere on a computer disk which she has not been able to locate, there is nothing in writing evidencing such a trust.
Case: In re Parsons; Stockley v Parsons (1890) 45 Ch D 51
Outcome: referred to
As the respondent has pointed out, there is an inconsistency between Ms Klewer's continued assertion that she created a testamentary trust and her statements to the effect that she intended the trust over the Korora property to take effect while she was still alive. If Ms Klewer's intention was to create a testamentary trust, then even if the will were in writing, this would not give rise to any legal or equitable right on the part of Robert Klewer while Ms Klewer remains alive. A ' beneficiary under [a] will derives, while the testator remains alive, no legal or equitable right or title from the will: all the beneficiary has is the prospect of acquiring a right or title if the testator dies in the lifetime of the prospective beneficiary without revoking or altering the will ' (R Meagher, J Heydon and M Leeming, Meagher, Gummow and Lehane's Equity: Doctrines &amp; Remedies (4 th ed, LexisNexis Butterworths, 2002) at [6-190]). As was stated In re Parsons; Stockley v Parsons (1890) 45 Ch D 51 at 55 per Kay J (approved in Ogden Industries Pty Limited v Lucas [1968] UKPCHCA 1 ; (1968) 118 CLR 32 at 37): It is indisputable law that no one can have any estate or interest, at law or in equity, contingent or other, in the property of a living person to which he hopes to succeed as heir at law or next of kin of such living person. During the life of such person no one can have more than a spes successionis, an expectation or hope of succeeding to his property.
Case: Klewer v Official Trustee in Bankruptcy [2008] FMCA 274
Outcome: considered
The appellants appeal from a decision of Raphael FM dismissing their application for a declaration that the Korora property is non-divisible among Ms Klewer's creditors ( Klewer v Official Trustee in Bankruptcy [2008] FMCA 274). Ms Klewer argued before Raphael FM that the Korora property is not divisible amongst her creditors for two reasons: that the moneys used to purchase the property constituted "protected money" within the meaning of s 116(2D) of the Act and that the Korora property was held in trust by Ms Klewer for Robert Klewer and was therefore not property divisible amongst Ms Klewer's creditors by virtue of the operation of s 116(2)(a) of the Act. 3 On 11 March 2008, the appellants filed a notice of appeal ' from part of the judgment of the Federal Magistrates Court '. The ground of appeal was: ' That the evidence supports the existence of a trust '. On 18 June 2008, an amended notice of appeal was filed from the whole of the judgment of Raphael FM. The sole ground of appeal is: ' Procedural unfairness '. No particulars are provided. 4 At the hearing of this appeal, Ms Klewer says that her grounds of appeal are: &#8226; Procedural unfairness, because: - She appeared by telephone before the Federal Magistrate; - She was unable to hear everything that was said during the hearing before the Federal Magistrate; - The Federal Magistrate did not cross-examine her other children who had filed affidavits; - The Federal Magistrate "assumed" what the other children had meant from their statements and drew the wrong conclusions from those statements; - She and her son did not have legal representation. &#8226; That the evidence established an express trust in favour of Robert Klewer, or, in the alternative, an implied or constructive trust.
Case: Ogden Industries Pty Limited v Lucas [1968] UKPCHCA 1 ; (1968) 118 CLR 32
Outcome: cited
As the respondent has pointed out, there is an inconsistency between Ms Klewer's continued assertion that she created a testamentary trust and her statements to the effect that she intended the trust over the Korora property to take effect while she was still alive. If Ms Klewer's intention was to create a testamentary trust, then even if the will were in writing, this would not give rise to any legal or equitable right on the part of Robert Klewer while Ms Klewer remains alive. A ' beneficiary under [a] will derives, while the testator remains alive, no legal or equitable right or title from the will: all the beneficiary has is the prospect of acquiring a right or title if the testator dies in the lifetime of the prospective beneficiary without revoking or altering the will ' (R Meagher, J Heydon and M Leeming, Meagher, Gummow and Lehane's Equity: Doctrines &amp; Remedies (4 th ed, LexisNexis Butterworths, 2002) at [6-190]). As was stated In re Parsons; Stockley v Parsons (1890) 45 Ch D 51 at 55 per Kay J (approved in Ogden Industries Pty Limited v Lucas [1968] UKPCHCA 1 ; (1968) 118 CLR 32 at 37): It is indisputable law that no one can have any estate or interest, at law or in equity, contingent or other, in the property of a living person to which he hopes to succeed as heir at law or next of kin of such living person. During the life of such person no one can have more than a spes successionis, an expectation or hope of succeeding to his property.
Case: Djalic v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 151 ; (2004) 139 FCR 292
Outcome: referred to
I raised with counsel appearing for the Commonwealth the possibility that the Tribunal may have taken into account an irrelevant consideration by considering the deterrent effect that the applicant's deportation may have on other non-citizens with criminal records. Mr Potts correctly pointed out that the Tribunal was required to take that into account by Direction No. 21. Further, two decisions of the Full Court of this Court establish that it is permissible to take into account general deterrence where it is not the sole or substantial factor justifying deportation: see Djalic v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 151 ; (2004) 139 FCR 292 at 312 [76] per Tamberlin, Sackville and Stone JJ; Tuncok v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 172 at [42] - [45] per Moore, Branson and Emmett JJ. It was not the sole or substantial factor in this case. Accordingly no error is thereby disclosed.
Case: Minister for Aboriginal Affairs &amp; Anor v Peko-Wallsend Limited &amp; Ors [1986] HCA 40 ; (1985) 162 CLR 24
Outcome: applied
Secondly, one view of the matter is that by the mere act of departing the country for three days the applicant has effectively done himself out of a right to reside in Australia. I have no doubt that the Tribunal would have been within its rights to take that misfortune into consideration in dealing with the application before it. However, I do not think that it can be said that the Tribunal was bound to take that matter into account in the sense used in Minister for Aboriginal Affairs &amp; Anor v Peko-Wallsend Limited &amp; Ors [1986] HCA 40 ; (1985) 162 CLR 24 at 39 per Mason J. The Minister may now wish to consider this aspect of the matter. He is not bound to do so. If the matter is considered it may make no difference. It may be one does not know that the applicant's reason for the three day departure may be relevant. It may be that the applicant's prior actions were such that his visa should still be cancelled. In any event, these are not matters for the Court and are entirely for the Minister in whom these functions are reposed. 38 The application must be dismissed with costs. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram. Associate: Dated: 22 December 2008 Counsel for the Applicant: The applicant appeared in person. Counsel for the First Respondent: Mr JAC Potts Solicitors for the First Respondent: Clayton Utz Date of Hearing: 29 September 2008 Date of Judgment: 22 December 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1950.html
Case: Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50 ; (2006) 228 CLR 566
Outcome: referred to
There are, I think, two arguments contained in this letter. The first is the claim that the applicant is an Australian citizen. I have already dealt with that matter above. The second is the suggestion that the applicant was entitled to an absorbed person's visa pursuant to s 34 of the Act so that when the Minister and, inferentially, the Tribunal purported to cancel his visa it erroneously cancelled the incorrect visa. Presumably the consequence of that error would be that the applicant continues to be entitled to reside in Australia pursuant to the absorbed person's visa. The history and effect of s 34 was explained by Gummow and Hayne JJ in Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50 ; (2006) 228 CLR 566 at 576-578 [18] - [22] . It is not necessary to revisit that history here. It sufficies rather to note that s 34(1) provides for there to be a class of permanent visa to "remain in", but not re-enter, Australia, to be known as "absorbed person visas". It will be apparent from the applicant's letter to the Court that there is no dispute that he did in fact leave the country for 72 hours which, for present purposes, is sufficient to dispose of the present argument. Having departed even for that brief period, the right of re-entry was lost. 36 There are two further matters which relate to that conclusion which should be mentioned. First, it is unclear how the argument fits into an application for prerogative writs against the Tribunal (as I have treated the application). The argument was not put to the Tribunal and it may be that there is a real question as to whether a jurisdictional error was committed by the Tribunal in failing to appreciate that which was not put to it. However, given my conclusions that the argument is unsound it is not necessary to reach a view on that matter.
Case: Tuncok v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 172
Outcome: cited
I raised with counsel appearing for the Commonwealth the possibility that the Tribunal may have taken into account an irrelevant consideration by considering the deterrent effect that the applicant's deportation may have on other non-citizens with criminal records. Mr Potts correctly pointed out that the Tribunal was required to take that into account by Direction No. 21. Further, two decisions of the Full Court of this Court establish that it is permissible to take into account general deterrence where it is not the sole or substantial factor justifying deportation: see Djalic v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 151 ; (2004) 139 FCR 292 at 312 [76] per Tamberlin, Sackville and Stone JJ; Tuncok v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 172 at [42] - [45] per Moore, Branson and Emmett JJ. It was not the sole or substantial factor in this case. Accordingly no error is thereby disclosed.
Case: Agar v Hyde (2000) 201 CLR 552
Outcome: discussed
the judicature system form of pleading, a plaintiff must plead the material facts which are relied on to entitle the plaintiff to the relief claimed. There is no need also to assert or identify a legal category or cause of action that the material facts pleaded may illustrate, involve or demonstrate. The role of pleaded material facts is to evince (at a high level) the factual basis on which the Court can grant the relief sought; it is not a set of submissions demonstrating the legal pathway to the desired result. In Agar v Hyde (2000) 201 CLR 552 at 577-578 [64] Gaudron, McHugh, Gummow and Hayne JJ noted there that it may be difficult for a court to say from the pleadings that a claim by a plaintiff that a defendant is liable in negligence is bound to fail because it is not arguable that the defendant owed the plaintiff a duty of care. In that example, the material facts pleaded will frequently be an assertion of the broad relationship between the parties and that in that scenario the defendant owed a duty of care to the plaintiff. Often the evidence given at the trial will become critical in ascertaining whether the material facts pleaded can be established. I am of opinion that a party granted leave to bring proceedings in a company's name under s 511 is not authorised under the grant to make a substantive expansion of the proceedings by adding new parties or significant new material facts (which may give rise to a new cause of action). The role of the Court in giving its authorisation requires it, not the party, to determine whether the proposed use of the company's name by the applicant is appropriate. The grant of authority to a party to bring proceedings in a company's name is not a delegation of the important role the Court plays in determining how the winding up is conducted. The later joinder of a new party, or the exploration of significantly new material facts, outside the broad area for which the authorisation was sought, involve the assertion, in the company's name, of rights that the Court has not examined. Under the Act, the liquidator remains in control of the company's other assets, including its other choses in action against a new defendant/respondent or the existing defendant/respondent. The grant of leave to commence proceedings in the company's name is a specific authorisation for a particular purpose that has been established to the Court's satisfaction in accordance with the tests that I have discussed above.