mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: RG Capital Radio Ltd v Australian Broadcasting Authority [2001] FCA 855 ; (2001) 113 FCR 185
Outcome: applied
As the Full Court observed in RG Capital Radio Ltd v Australian Broadcasting Authority [2001] FCA 855 ; (2001) 113 FCR 185 ("R G Capital" ) at 194 at [40], there is no simple rule for determining whether a decision is of an administrative or legislative character. At 194 at [44] the Court cited the following passage from the judgment of the Full Court in Minister for Industry and Commerce v Tooheys Ltd (1982) 42 ALR 260 at 265: The distinction is essentially between the creation or formulation of new rules of law having general application and the application of those general rules to particular cases: Commonwealth v Grunseit [(1943) [1943] HCA 44 ; 67 CLR 58] ; Hamblin v Duffy No 2 [34 ALR 333] and de Smith's Judicial Review of Administrative Action 4th ed, p 71. In Commonwealth v Grunseit , Latham CJ expressed ... the distinction in these terms: 'The general distinction between legislation and the execution of legislation is that legislation determines the content of a law as a rule of conduct or a declaration as to power, right or duty, whereas executive authority applies the law in particular cases'. 28 In reaching a decision as to whether in exercising its powers under s 52D(2) of the Act the Committee was acting legislatively or administratively, it is necessary to have regard to considerations traditionally regarded as relevant for this purpose. Nonetheless, the task ultimately is an evaluative one; a judgment must be made taking into account all relevant considerations, but no single consideration is likely to be decisive ( RG Capital Radio at 194 at [42]). 29 In Visa International Services Association v Reserve Bank of Australia [2003] FCA 977 ; (2003) 131 FCR 300 at 424 at [592] Tamberlin J summarised the matters which were regarded as relevant in RG Capital Radio as follows: &#8226; Whether the decisions determined rules of general application or whether there was an application of rules to particular cases. &#8226; Whether there was Parliamentary control of the decision. &#8226; Whether there was public notification of the making of the regulation. &#8226; Whether there has been public consultation and the extent of any such consultation. &#8226; Whether there were broad policy considerations imposed. &#8226; Whether the regulations could be varied. &#8226; Whether there was power of executive variation or control. &#8226; Whether provision exists for merits review. &#8226; Binding effect.
Case: Visa International Services Association v Reserve Bank of Australia [2003] FCA 977 ; (2003) 131 FCR 300
Outcome: cited
In Visa International Services Association v Reserve Bank of Australia [2003] FCA 977 ; (2003) 131 FCR 300 at 424 at [592] Tamberlin J summarised the matters which were regarded as relevant in RG Capital Radio as follows: &#8226; Whether the decisions determined rules of general application or whether there was an application of rules to particular cases. &#8226; Whether there was Parliamentary control of the decision. &#8226; Whether there was public notification of the making of the regulation. &#8226; Whether there has been public consultation and the extent of any such consultation. &#8226; Whether there were broad policy considerations imposed. &#8226; Whether the regulations could be varied. &#8226; Whether there was power of executive variation or control. &#8226; Whether provision exists for merits review. &#8226; Binding effect.
Case: HVAC Construction (Qld) Pty Ltd v Energy Equipment Engineering Pty Ltd (2002) 44 ACSR 169
Outcome: referred to
Secondly, the learned Chief Justice indicated at 671 [36] that he did not propose to follow the decision of the Full Court of the Supreme Court of Western Australia in Bayview Holdings Pty Ltd (in liq) v Zan Holdings Pty Ltd (unreported, Supreme Court of Western Australia, Ipp, Wallwork and Steytler JJ, 19 October 1998). The Full Court had there adopted a somewhat liberal approach to materiality. It seems to me that a fair reading of the reasons of the Chief Justice is that the proper approach to materiality is the narrow one. For completeness, it should be noted that in my opinion two justices of this Court have approached the matter on the more narrow view and have certainly thought themselves to be implementing the position in Switz: see HVAC Construction (Qld) Pty Ltd v Energy Equipment Engineering Pty Ltd (2002) 44 ACSR 169 at 184 [53] per French J; Web Wealth Pty Ltd v Helimount Pty Ltd [2006] FCA 1376 at [43] - [45] per Besanko J. That would be sufficient for me to feel obliged to approach the matter on the same basis.
Case: Radiancy (Sales) Pty Ltd v Bimat Pty Ltd [2007] NSWSC 962 ; (2007) 25 ACLC 1216
Outcome: considered
Mr Davidson drew my attention to a decision of White J in Radiancy (Sales) Pty Ltd v Bimat Pty Ltd [2007] NSWSC 962 ; (2007) 25 ACLC 1216 where at 1226 [64] his Honour said this: The question is not whether the debt demanded by Radiancy (Sales) is determinative of Bimat's insolvency. The question is whether it is material to proving the company is solvent. If the debt is owed, the company is undoubtedly insolvent. If it is not owed, the company may be solvent if Mr Colosimo's evidence as to the payment of creditors is accepted. Accordingly, s 459S(2) is satisfied in relation to the grounds that Radiancy (Sales) is not a creditor, or that the alleged debt is genuinely disputed. (Emphasis added.) 23 Mr Davidson says that this paragraph is an acceptance of the more liberal view. I accept that is a construction which may be open. However, looking at the balance of his Honour's reasons, it does not appear to me that his Honour was turning his mind in explicit terms to that question. I doubt therefore, whether White J, actually intended to say that. Even if his Honour had, however, the decision of the Court of Appeal and the two decisions of the Judges of this Court to which I have referred make it appropriate that I adopt the narrow approach to materiality.
Case: Web Wealth Pty Ltd v Helimount Pty Ltd [2006] FCA 1376
Outcome: referred to
Secondly, the learned Chief Justice indicated at 671 [36] that he did not propose to follow the decision of the Full Court of the Supreme Court of Western Australia in Bayview Holdings Pty Ltd (in liq) v Zan Holdings Pty Ltd (unreported, Supreme Court of Western Australia, Ipp, Wallwork and Steytler JJ, 19 October 1998). The Full Court had there adopted a somewhat liberal approach to materiality. It seems to me that a fair reading of the reasons of the Chief Justice is that the proper approach to materiality is the narrow one. For completeness, it should be noted that in my opinion two justices of this Court have approached the matter on the more narrow view and have certainly thought themselves to be implementing the position in Switz: see HVAC Construction (Qld) Pty Ltd v Energy Equipment Engineering Pty Ltd (2002) 44 ACSR 169 at 184 [53] per French J; Web Wealth Pty Ltd v Helimount Pty Ltd [2006] FCA 1376 at [43] - [45] per Besanko J. That would be sufficient for me to feel obliged to approach the matter on the same basis.
Case: Australian Competition and Consumer Commission v Chats House Investments Pty Ltd (1996) 71 FCR 250
Outcome: applied
In assessing a compromise under s 33V of the Act, the Court's task is an onerous one particularly in circumstances such as the present where the application is unoppossed: see Lopez v Star World Enterprises Pty Ltd (in liq) (1999) ATPR 41-678 at [16]. The Court is required: (1) to assess whether the proposed settlement or compromise is fair and reasonable and adequate having regard to the claims made on behalf of the group members who will be bound by the settlement: see Williams v FAI Home Security Pty Ltd (No 4) (2000) 180 ALR 459 at [19]; and (2) " to be satisfied that any settlement or discontinuance of representative proceedings has been undertaken in the interests of the group members as a whole, and not just in the interests of the applicant and the respondent ": Australian Competition and Consumer Commission v Chats House Investments Pty Ltd (1996) 71 FCR 250 at 258; Lopez v Star World Enterprises Pty Ltd [1999] ATPR 41-678 at [15] and Darwalla Milling Co Pty Ltd v F Hoffman-La Roche Ltd (No 2) (2007) ATPR 42-134 at [30] and [31]. See also Neil v P &amp; O Cruises Australia Pty Ltd (formerly P &amp; O Holidays Ltd) [2002] FCA 1325 (Weinberg J) at [6] [7]; Jarrama Pty Ltd v Caltex Australia Petroleum Pty Ltd [2004] FCA 1114 (Crennan J) at [10]; Courtney v Medtel Pty Ltd (No 5) (2004) 212 ALR 311 (Sackville J) at [37] [42]) and Georgiou v Old England Hotel Pty Ltd [2006] FCA 705 at [18] (Young J).
Case: Australian Securities &amp; Investments Commission v Money for Living (Aust) Pty Ltd (admin appted) &amp; Ors (No.2) [2006] FCA 1285 
Outcome: applied
In Australian Securities &amp; Investments Commission v Money for Living (Aust) Pty Ltd (admin appted) &amp; Ors (No.2) [2006] FCA 1285 , Finkelstein J described the factual background to these proceedings in the following terms: "Money for Living (Aust) Pty Ltd (admin apptd) ["MFL"] and MFL Property Holdings Pty Ltd (admin apptd) ["MFPL"] , by their directors, ... Stephen O'Neill, Gary O'Neill and Jolanta Olszewski - promoted a scheme that enticed home-owners, typically retirees or pensioners, to sell their homes in return for what the promoters described as a 'guaranteed' income and a 'guaranteed' right to live in their former home for life. Many people were induced to participate in the scheme. The idea was that the home-owners could free up and live off the equity that would otherwise be tied up in their family home. To the great misfortune of those people the scheme collapsed. The companies that purchased their homes (the purchaser was either MFL or MFLP) are insolvent and have had administrators appointed. The 'guaranteed income' is not being paid. For some, their life tenancy may be at risk." I will describe this as the 'MFL Scheme'. 3 Six home-owners of the kind described by Finkelstein J commenced these proceedings in the Federal Court of Australia against MFL, MFPL, the directors of MFL, Diakou Faigen, four third party investors and three lenders. 4 The applicants comprise a number of categories. Category A group members are those who, at the date of filing of the Application, had entered into Contracts of Sale of their property ("Contracts of Sale"), either Deeds or Deeds of Agreement ("Deeds of Agreement") and either Residential Tenancy Agreements or Deeds of Tenancy ("Leases") with MFL and remained registered proprietors of their respective properties. The first applicant is a member of this category. Category B group members are those who, at the date of filing of the Application, had entered into Contracts of Sale, Deeds of Agreement and Leases with MFL but the title to whose respective properties the subject of the Contract of Sale was registered in the name of MFL. The second and third applicants are members of this category. Category C group members are those who, at the date of filing of the Application, had entered into Contracts of Sale, Deeds of Agreement and Leases with MFPL and whose title to their respective properties the subject of the Contract of Sale was registered in the name of MFPL. The fourth to sixth applicants are members of this category. 5 Each of the applicants retained the thirteenth respondent, Diakou Faigen, to advise them prior to entry into the MFL Scheme and to prepare the necessary contract documentation to facilitate their entry into the MFL Scheme. As a consequence of the collapse of the MFL Scheme, the applicants suffered loss and damage. The applicants alleged that their losses and damages were caused by Diakou Faigen having breached its retainer and its duty of care and the fiduciary duties owed to the applicants.
Case: Courtney v Medtel Pty Ltd (No 5) (2004) 212 ALR 311
Outcome: referred to
In assessing a compromise under s 33V of the Act, the Court's task is an onerous one particularly in circumstances such as the present where the application is unoppossed: see Lopez v Star World Enterprises Pty Ltd (in liq) (1999) ATPR 41-678 at [16]. The Court is required: (1) to assess whether the proposed settlement or compromise is fair and reasonable and adequate having regard to the claims made on behalf of the group members who will be bound by the settlement: see Williams v FAI Home Security Pty Ltd (No 4) (2000) 180 ALR 459 at [19]; and (2) " to be satisfied that any settlement or discontinuance of representative proceedings has been undertaken in the interests of the group members as a whole, and not just in the interests of the applicant and the respondent ": Australian Competition and Consumer Commission v Chats House Investments Pty Ltd (1996) 71 FCR 250 at 258; Lopez v Star World Enterprises Pty Ltd [1999] ATPR 41-678 at [15] and Darwalla Milling Co Pty Ltd v F Hoffman-La Roche Ltd (No 2) (2007) ATPR 42-134 at [30] and [31]. See also Neil v P &amp; O Cruises Australia Pty Ltd (formerly P &amp; O Holidays Ltd) [2002] FCA 1325 (Weinberg J) at [6] [7]; Jarrama Pty Ltd v Caltex Australia Petroleum Pty Ltd [2004] FCA 1114 (Crennan J) at [10]; Courtney v Medtel Pty Ltd (No 5) (2004) 212 ALR 311 (Sackville J) at [37] [42]) and Georgiou v Old England Hotel Pty Ltd [2006] FCA 705 at [18] (Young J).
Case: Darwalla Milling Co Pty Ltd v F Hoffman-La Roche Ltd (No 2) (2007) ATPR 42-134
Outcome: referred to
In assessing a compromise under s 33V of the Act, the Court's task is an onerous one particularly in circumstances such as the present where the application is unoppossed: see Lopez v Star World Enterprises Pty Ltd (in liq) (1999) ATPR 41-678 at [16]. The Court is required: (1) to assess whether the proposed settlement or compromise is fair and reasonable and adequate having regard to the claims made on behalf of the group members who will be bound by the settlement: see Williams v FAI Home Security Pty Ltd (No 4) (2000) 180 ALR 459 at [19]; and (2) " to be satisfied that any settlement or discontinuance of representative proceedings has been undertaken in the interests of the group members as a whole, and not just in the interests of the applicant and the respondent ": Australian Competition and Consumer Commission v Chats House Investments Pty Ltd (1996) 71 FCR 250 at 258; Lopez v Star World Enterprises Pty Ltd [1999] ATPR 41-678 at [15] and Darwalla Milling Co Pty Ltd v F Hoffman-La Roche Ltd (No 2) (2007) ATPR 42-134 at [30] and [31]. See also Neil v P &amp; O Cruises Australia Pty Ltd (formerly P &amp; O Holidays Ltd) [2002] FCA 1325 (Weinberg J) at [6] [7]; Jarrama Pty Ltd v Caltex Australia Petroleum Pty Ltd [2004] FCA 1114 (Crennan J) at [10]; Courtney v Medtel Pty Ltd (No 5) (2004) 212 ALR 311 (Sackville J) at [37] [42]) and Georgiou v Old England Hotel Pty Ltd [2006] FCA 705 at [18] (Young J). 19 In Darwalla Milling Co Pty Ltd v F Hoffman-La Roche Ltd (No 2) (2007) ATPR 42-134, Jessup J said that because s 33V of the Act identified no criteria by reference to which the court should approve, or should decline to approve, a particular settlement, he could see no particular warrant for incorporating into Pt IVA of the Act the requirements of rules of court in an overseas jurisdiction. Similarly, Jessup J stated that although the notion that a settlement should be 'fair and reasonable' seemed unobjectionable as a matter of principle, if that consideration was to inform the process of approval under s 33V, it should be because of its harmony with the scheme of Pt IVA of the Act and because it tended to achieve the implicit object of the section. Having stated those qualifications, Jessup J stated (at [40]) that he was minded to decide the matter before him: "by reference to the question whether the proposed settlement [was] fair and reasonable in the interests of group members as a whole, but ... approach[ed] the question of 'adequacy' with some caution."
Case: Georgiou v Old England Hotel Pty Ltd [2006] FCA 705
Outcome: referred to
In assessing a compromise under s 33V of the Act, the Court's task is an onerous one particularly in circumstances such as the present where the application is unoppossed: see Lopez v Star World Enterprises Pty Ltd (in liq) (1999) ATPR 41-678 at [16]. The Court is required: (1) to assess whether the proposed settlement or compromise is fair and reasonable and adequate having regard to the claims made on behalf of the group members who will be bound by the settlement: see Williams v FAI Home Security Pty Ltd (No 4) (2000) 180 ALR 459 at [19]; and (2) " to be satisfied that any settlement or discontinuance of representative proceedings has been undertaken in the interests of the group members as a whole, and not just in the interests of the applicant and the respondent ": Australian Competition and Consumer Commission v Chats House Investments Pty Ltd (1996) 71 FCR 250 at 258; Lopez v Star World Enterprises Pty Ltd [1999] ATPR 41-678 at [15] and Darwalla Milling Co Pty Ltd v F Hoffman-La Roche Ltd (No 2) (2007) ATPR 42-134 at [30] and [31]. See also Neil v P &amp; O Cruises Australia Pty Ltd (formerly P &amp; O Holidays Ltd) [2002] FCA 1325 (Weinberg J) at [6] [7]; Jarrama Pty Ltd v Caltex Australia Petroleum Pty Ltd [2004] FCA 1114 (Crennan J) at [10]; Courtney v Medtel Pty Ltd (No 5) (2004) 212 ALR 311 (Sackville J) at [37] [42]) and Georgiou v Old England Hotel Pty Ltd [2006] FCA 705 at [18] (Young J).
Case: Harrison v Kerrili Pty Ltd (trading as Diakou Faigen) (Unreported, Supreme Court of Victoria, 6 June 2007)
Outcome: referred to
In my view, the analysis undertaken by Goldberg J is not properly to be read as seeking to 'incorporate' into Pt IVA of the Federal Court Act the requirements of Rules of Court in an overseas jurisdiction. The analysis provided and continues to provide a useful guide in considering applications for approval under s 33V of the Act: see most recently Gillard J in Harrison v Kerrili Pty Ltd (trading as Diakou Faigen) (Unreported, Supreme Court of Victoria, 6 June 2007). It should, in appropriate cases and subject to the circumstances of any particular case, continue to be employed as a useful guide.
Case: Jarrama Pty Ltd v Caltex Australia Petroleum Pty Ltd [2004] FCA 1114
Outcome: referred to
In assessing a compromise under s 33V of the Act, the Court's task is an onerous one particularly in circumstances such as the present where the application is unoppossed: see Lopez v Star World Enterprises Pty Ltd (in liq) (1999) ATPR 41-678 at [16]. The Court is required: (1) to assess whether the proposed settlement or compromise is fair and reasonable and adequate having regard to the claims made on behalf of the group members who will be bound by the settlement: see Williams v FAI Home Security Pty Ltd (No 4) (2000) 180 ALR 459 at [19]; and (2) " to be satisfied that any settlement or discontinuance of representative proceedings has been undertaken in the interests of the group members as a whole, and not just in the interests of the applicant and the respondent ": Australian Competition and Consumer Commission v Chats House Investments Pty Ltd (1996) 71 FCR 250 at 258; Lopez v Star World Enterprises Pty Ltd [1999] ATPR 41-678 at [15] and Darwalla Milling Co Pty Ltd v F Hoffman-La Roche Ltd (No 2) (2007) ATPR 42-134 at [30] and [31]. See also Neil v P &amp; O Cruises Australia Pty Ltd (formerly P &amp; O Holidays Ltd) [2002] FCA 1325 (Weinberg J) at [6] [7]; Jarrama Pty Ltd v Caltex Australia Petroleum Pty Ltd [2004] FCA 1114 (Crennan J) at [10]; Courtney v Medtel Pty Ltd (No 5) (2004) 212 ALR 311 (Sackville J) at [37] [42]) and Georgiou v Old England Hotel Pty Ltd [2006] FCA 705 at [18] (Young J).
Case: Lopez v Star World Enterprises Pty Ltd (in liq) (1999) ATPR 41-678 
Outcome: applied
In assessing a compromise under s 33V of the Act, the Court's task is an onerous one particularly in circumstances such as the present where the application is unoppossed: see Lopez v Star World Enterprises Pty Ltd (in liq) (1999) ATPR 41-678 at [16]. The Court is required: (1) to assess whether the proposed settlement or compromise is fair and reasonable and adequate having regard to the claims made on behalf of the group members who will be bound by the settlement: see Williams v FAI Home Security Pty Ltd (No 4) (2000) 180 ALR 459 at [19]; and (2) " to be satisfied that any settlement or discontinuance of representative proceedings has been undertaken in the interests of the group members as a whole, and not just in the interests of the applicant and the respondent ": Australian Competition and Consumer Commission v Chats House Investments Pty Ltd (1996) 71 FCR 250 at 258; Lopez v Star World Enterprises Pty Ltd [1999] ATPR 41-678 at [15] and Darwalla Milling Co Pty Ltd v F Hoffman-La Roche Ltd (No 2) (2007) ATPR 42-134 at [30] and [31]. See also Neil v P &amp; O Cruises Australia Pty Ltd (formerly P &amp; O Holidays Ltd) [2002] FCA 1325 (Weinberg J) at [6] [7]; Jarrama Pty Ltd v Caltex Australia Petroleum Pty Ltd [2004] FCA 1114 (Crennan J) at [10]; Courtney v Medtel Pty Ltd (No 5) (2004) 212 ALR 311 (Sackville J) at [37] [42]) and Georgiou v Old England Hotel Pty Ltd [2006] FCA 705 at [18] (Young J).
Case: Neil v P &amp; O Cruises Australia Pty Ltd (formerly P &amp; O Holidays Ltd) [2002] FCA 1325
Outcome: referred to
In assessing a compromise under s 33V of the Act, the Court's task is an onerous one particularly in circumstances such as the present where the application is unoppossed: see Lopez v Star World Enterprises Pty Ltd (in liq) (1999) ATPR 41-678 at [16]. The Court is required: (1) to assess whether the proposed settlement or compromise is fair and reasonable and adequate having regard to the claims made on behalf of the group members who will be bound by the settlement: see Williams v FAI Home Security Pty Ltd (No 4) (2000) 180 ALR 459 at [19]; and (2) " to be satisfied that any settlement or discontinuance of representative proceedings has been undertaken in the interests of the group members as a whole, and not just in the interests of the applicant and the respondent ": Australian Competition and Consumer Commission v Chats House Investments Pty Ltd (1996) 71 FCR 250 at 258; Lopez v Star World Enterprises Pty Ltd [1999] ATPR 41-678 at [15] and Darwalla Milling Co Pty Ltd v F Hoffman-La Roche Ltd (No 2) (2007) ATPR 42-134 at [30] and [31]. See also Neil v P &amp; O Cruises Australia Pty Ltd (formerly P &amp; O Holidays Ltd) [2002] FCA 1325 (Weinberg J) at [6] [7]; Jarrama Pty Ltd v Caltex Australia Petroleum Pty Ltd [2004] FCA 1114 (Crennan J) at [10]; Courtney v Medtel Pty Ltd (No 5) (2004) 212 ALR 311 (Sackville J) at [37] [42]) and Georgiou v Old England Hotel Pty Ltd [2006] FCA 705 at [18] (Young J).
Case: Burgess v Minister for Immigration and Multicultural Affairs [2000] FCA 926 ; (2000) 101 FCR 58
Outcome: cited
J did not refer to s 33(1). However, in Burgess v Minister for Immigration and Multicultural Affairs [2000] FCA 926 ; (2000) 101 FCR 58 at 62 Katz J expressed the view that his Honour would have come to the same conclusion had he taken that provision into account.
Case: Dutton v Republic of South Africa [1999] FCA 498 ; (1999) 162 ALR 625
Outcome: cited
Dutton v Republic of South Africa [1999] FCA 498 ; (1999) 162 ALR 625 at [32] Branson J observed that s 33(1) does not refer to the withdrawal or cancellation of the exercise of a power. Her Honour pointed to the contrast between subss (1) and (3) in this respect.