mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833 , 117 FCR 424
Outcome: applied
the powers of the Court on appeal can only be exercised if there be appellable error. And, where an appeal is in the nature of a rehearing, the appellate Court can substitute its own decision on the facts and law as they then stand: Allesch v Maunz [2000] HCA 40 at [23] , [2000] HCA 40 ; 203 CLR 172 at 180 to 181. Gaudron, McHugh, Gummow and Hayne JJ there made the following observations in relation to the powers of a Court when entertaining an appeal by way of a rehearing (references omitted): For present purposes, the critical difference between an appeal by way of rehearing and a hearing de novo is that, in the former case, the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error, whereas, in the latter case, those powers may be exercised regardless of error. At least that is so unless, in the case of an appeal by way of rehearing, there is some statutory provision which indicates that the powers may be exercised whether or not there was error at first instance. And the critical distinction, for present purposes, between an appeal by way of rehearing and an appeal in the strict sense is that, unless the matter is remitted for rehearing, a court hearing an appeal in the strict sense can only give the decision which should have been given at first instance whereas, on an appeal by way of rehearing, an appellate court can substitute its own decision based on the facts and the law as they then stand. Although this was a case concerning the Family Court, s 27 of the Federal Court of Australia Act 1976 (Cth) is not materially different to the equivalent provision of the Family Law Act 1976 (Cth): Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 at [75] , [2001] HCA 17 ; 205 CLR 507 at 533 per Gleeson CJ and Gummow J. The " proper role of an appellate court under s 25 of the Federal Court Act ... is ordinarily to correct error ": Sobey v Nicol [2007] FCAFC 136 at [72] , [2007] FCAFC 136 ; 245 ALR 389 at 403 to 404 per Branson, Lindgren and Besanko JJ. It is not appropriate to treat an appeal "as though it were a new trial on the evidence and constrained merely by ... unassailable factual findings "; error must be demonstrated: Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833 at [30] , [2001] FCA 1833 ; 117 FCR 424 at 438 per Allsop J (Drummond and Mansfield JJ agreeing).
Case: Edelsten v Deputy Commissioner of Taxation (Cth) (1986) 86 ALR 257
Outcome: applied
is for an applicant for annulment to bring himself within s 153B and to satisfy the Court that the sequestration order ought not to have been made: Pollock v Deputy Federal Commissioner of Taxation (1994) 94 ATC 4148 ; Rigg v Baker [2006] FCAFC 179 at [63] , [2006] FCAFC 179 ; 155 FCR 531 at 544 per French J (as His Honour then was). The standard of proof is that of the balance of probabilities: Edelsten v Deputy Commissioner of Taxation (Cth) (1986) 86 ALR 257.
Case: Evans v Hi-Fert Pty Ltd [2003] FCA 802
Outcome: cited
section has essentially two elements, namely the establishment of the state of satisfaction that a sequestration order ought not to have been made and, if that state of satisfaction is reached, thereafter an exercise of discretion: Rigg v Baker [2006] FCAFC 179 at [59] , [2006] FCAFC 179 ; 155 FCR 531 at 543 per French J. Those who seek an annulment carry a " heavy burden ": Re Papps; Ex parte Tapp (1997) 78 FCR 524 at 531 per O'Loughlin J; Evans v Hi-Fert Pty Ltd [2003] FCA 802 at [11] ; Samootin v Wagner [2008] FCA 1066 at [32] .
Case: Gargan v Kippin Investments Pty Ltd [2008] FCA 1718
Outcome: cited
manner in which s 153B is to be applied has been summarised as follows by Carr, Finn and Sundberg JJ in Heinrich v Commonwealth Bank of Australia [2003] FCAFC 315: [20] The Court must first consider whether the sequestration order ought not to have been made. If it so finds, then the Court must consider whether, in the exercise of its discretion, the bankruptcy should be annulled: Re Deriu (1970) 16 FLR 420. Later evidence of previously unknown facts may disclose matters which show that the sequestration order ought not to have been made. That is, the Court is entitled to consider not only the case as disclosed at the time when the sequestration order was made, but also those facts now known then to have existed. The Court excludes those facts which have occurred since the order was made. Later evidence of previously unknown facts may disclose matters which show that the sequestration order ought not to have been made: Re Frank; Ex parte Piliszky (1987) 16 FCR 396 ; Stankiewicz v Plata [2000] FCA 1185 at [19] ; Re Williams (1968) 13 FLR 10 at 23; Re Ditfort; Ex parte Deputy Commissioner of Taxation (1988) 19 FCR 347. These authorities, all of which were cited by the learned primary judge in his judgment, were accepted at first instance as reflecting the relevant law. See also: Voskuilen v Morisset Megamarket Pty Ltd [2004] FCA 1727 at [14] per Jacobson J; Hacker v The Owners - Strata Plan No 17572 [2005] FCA 1936 at [46] per Emmett J; Johnston v Challen t/as Hawthorn Cappaidge and Badgery [2006] FCA 401 at [32] per Collier J; Gargan v Kippin Investments Pty Ltd [2008] FCA 1718 at [11] per Perram J.
Case: Goldie v The Commonwealth of Australia [2004] FCA 973
Outcome: cited
power conferred by O 52 r 38(1)(a) " must not be lightly exercised ": Van Reesema v Giameos [1979] FCA 108 ; (1979) 41 FLR 86 at 90 per Bowen CJ, Fisher and Lockhart JJ; Goldie v The Commonwealth of Australia [2004] FCA 973 at [16] per Carr J. It has further been recognised that the Court's power " to dismiss for want of prosecution is a drastic step which would only be justified by the grossest or most contumelious delay ": Hughes v Australian Competition and Consumer Commission [2004] FCA 1271 at [8] per Jacobson J. It is " exceptional for the court to dismiss a matter for want of prosecution under O 52 r 38(1)(a) ": Abraham v Attorney-General for the Commonwealth [2004] FCA 411 at [5] per Finn J. Each case, however, must necessarily depend upon its own factual matrix. A failure to comply with obligations imposed by the Rules or directions of the Court made to ensure an appeal is ready for hearing may be relied upon to dismiss an appeal (e.g. Goldie v The Commonwealth of Australia [2004] FCA 973) &#8212; but such failures will not in all cases necessarily lead to such an order being made (e.g. Jandruwanda v University of South Australia [2003] FCA 1456). In the context of the present appeal, it is considered to be a more appropriate course to resolve the Notice of Appeal on such merits as it may present. Indeed, it may well require an exceptional case for an appeal to be dismissed for want of prosecution in circumstances where all submissions in respect to the appeal have been concluded.
Case: Hacker v The Owners - Strata Plan No 17572 [2005] FCA 1936
Outcome: cited
manner in which s 153B is to be applied has been summarised as follows by Carr, Finn and Sundberg JJ in Heinrich v Commonwealth Bank of Australia [2003] FCAFC 315: [20] The Court must first consider whether the sequestration order ought not to have been made. If it so finds, then the Court must consider whether, in the exercise of its discretion, the bankruptcy should be annulled: Re Deriu (1970) 16 FLR 420. Later evidence of previously unknown facts may disclose matters which show that the sequestration order ought not to have been made. That is, the Court is entitled to consider not only the case as disclosed at the time when the sequestration order was made, but also those facts now known then to have existed. The Court excludes those facts which have occurred since the order was made. Later evidence of previously unknown facts may disclose matters which show that the sequestration order ought not to have been made: Re Frank; Ex parte Piliszky (1987) 16 FCR 396 ; Stankiewicz v Plata [2000] FCA 1185 at [19] ; Re Williams (1968) 13 FLR 10 at 23; Re Ditfort; Ex parte Deputy Commissioner of Taxation (1988) 19 FCR 347. These authorities, all of which were cited by the learned primary judge in his judgment, were accepted at first instance as reflecting the relevant law. See also: Voskuilen v Morisset Megamarket Pty Ltd [2004] FCA 1727 at [14] per Jacobson J; Hacker v The Owners - Strata Plan No 17572 [2005] FCA 1936 at [46] per Emmett J; Johnston v Challen t/as Hawthorn Cappaidge and Badgery [2006] FCA 401 at [32] per Collier J; Gargan v Kippin Investments Pty Ltd [2008] FCA 1718 at [11] per Perram J.
Case: Hughes v Australian Competition and Consumer Commission [2004] FCA 1271
Outcome: cited
power conferred by O 52 r 38(1)(a) " must not be lightly exercised ": Van Reesema v Giameos [1979] FCA 108 ; (1979) 41 FLR 86 at 90 per Bowen CJ, Fisher and Lockhart JJ; Goldie v The Commonwealth of Australia [2004] FCA 973 at [16] per Carr J. It has further been recognised that the Court's power " to dismiss for want of prosecution is a drastic step which would only be justified by the grossest or most contumelious delay ": Hughes v Australian Competition and Consumer Commission [2004] FCA 1271 at [8] per Jacobson J. It is " exceptional for the court to dismiss a matter for want of prosecution under O 52 r 38(1)(a) ": Abraham v Attorney-General for the Commonwealth [2004] FCA 411 at [5] per Finn J.
Case: Jandruwanda v University of South Australia [2003] FCA 1456
Outcome: cited
case, however, must necessarily depend upon its own factual matrix. A failure to comply with obligations imposed by the Rules or directions of the Court made to ensure an appeal is ready for hearing may be relied upon to dismiss an appeal (e.g. Goldie v The Commonwealth of Australia [2004] FCA 973) &#8212; but such failures will not in all cases necessarily lead to such an order being made (e.g. Jandruwanda v University of South Australia [2003] FCA 1456). In the context of the present appeal, it is considered to be a more appropriate course to resolve the Notice of Appeal on such merits as it may present. Indeed, it may well require an exceptional case for an appeal to be dismissed for want of prosecution in circumstances where all submissions in respect to the appeal have been concluded.
Case: Johnston v Challen t/as Hawthorn Cappaidge and Badgery [2006] FCA 401
Outcome: cited
manner in which s 153B is to be applied has been summarised as follows by Carr, Finn and Sundberg JJ in Heinrich v Commonwealth Bank of Australia [2003] FCAFC 315: [20] The Court must first consider whether the sequestration order ought not to have been made. If it so finds, then the Court must consider whether, in the exercise of its discretion, the bankruptcy should be annulled: Re Deriu (1970) 16 FLR 420. Later evidence of previously unknown facts may disclose matters which show that the sequestration order ought not to have been made. That is, the Court is entitled to consider not only the case as disclosed at the time when the sequestration order was made, but also those facts now known then to have existed. The Court excludes those facts which have occurred since the order was made. Later evidence of previously unknown facts may disclose matters which show that the sequestration order ought not to have been made: Re Frank; Ex parte Piliszky (1987) 16 FCR 396 ; Stankiewicz v Plata [2000] FCA 1185 at [19] ; Re Williams (1968) 13 FLR 10 at 23; Re Ditfort; Ex parte Deputy Commissioner of Taxation (1988) 19 FCR 347. These authorities, all of which were cited by the learned primary judge in his judgment, were accepted at first instance as reflecting the relevant law. See also: Voskuilen v Morisset Megamarket Pty Ltd [2004] FCA 1727 at [14] per Jacobson J; Hacker v The Owners - Strata Plan No 17572 [2005] FCA 1936 at [46] per Emmett J; Johnston v Challen t/as Hawthorn Cappaidge and Badgery [2006] FCA 401 at [32] per Collier J; Gargan v Kippin Investments Pty Ltd [2008] FCA 1718 at [11] per Perram J.
Case: Khera v Jones [2008] FCA 548
Outcome: cited
the power to dismiss an appeal for want of prosecution is a power available to be exercised in an appropriate case. " [S]uccessive and cavalier omissions by the appellant " led the Full Court to dismiss an appeal in NBCI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 280. So, too, can " persistent breach of the Court's directions ": Khera v Jones [2008] FCA 548 at [16] per Buchanan J. This power can be invoked in respect to all appeals, including bankruptcy appeals: e.g. Singh v Official Trustee in Bankruptcy [2008] FCA 544.
Case: Knight v Beyond Properties Pty Ltd [2007] FCAFC 170 , 242 ALR 586
Outcome: cited
resolving each of these Grounds as formulated during the course of the hearing on 7 May 2009, there was no dissent from the proposition that an appeal to this Court is in the nature of a rehearing: Knight v Beyond Properties Pty Ltd [2007] FCAFC 170 at [20] , [2007] FCAFC 170 ; 242 ALR 586 at 591 per French, Tamberlin and Rares JJ. Nor could there be.
Case: Maas v Maas (unreported, FCA, Ryan, Heerey and Tamberlin JJ, NG 283 of 1998, 16 November 1998)
Outcome: cited
hearing of the Appeal and the Respondent's Notice of Motion proceeded on 7 May 2009. In addition to the parties to the appeal, the Trustee in Bankruptcy appeared for the purpose of assisting the Court. As submitted by the Trustee, an application for an annulment of bankruptcy, because it goes to a matter of status under the law, is different from ordinary litigation inter partes : Maas v Maas (unreported, FCA, Ryan, Heerey and Tamberlin JJ, NG 283 of 1998, 16 November 1998). It is considered that the Respondent's Notice of Motion and the Appellant's Appeal should both be dismissed. It is prudent that brief reasons should be provided for adjourning the hearing from 17 April to 5 May 2009 and thereafter to 7 May 2009.
Case: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 , 205 CLR 507
Outcome: applied
the powers of the Court on appeal can only be exercised if there be appellable error. And, where an appeal is in the nature of a rehearing, the appellate Court can substitute its own decision on the facts and law as they then stand: Allesch v Maunz [2000] HCA 40 at [23] , [2000] HCA 40 ; 203 CLR 172 at 180 to 181. Gaudron, McHugh, Gummow and Hayne JJ there made the following observations in relation to the powers of a Court when entertaining an appeal by way of a rehearing (references omitted): For present purposes, the critical difference between an appeal by way of rehearing and a hearing de novo is that, in the former case, the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error, whereas, in the latter case, those powers may be exercised regardless of error. At least that is so unless, in the case of an appeal by way of rehearing, there is some statutory provision which indicates that the powers may be exercised whether or not there was error at first instance. And the critical distinction, for present purposes, between an appeal by way of rehearing and an appeal in the strict sense is that, unless the matter is remitted for rehearing, a court hearing an appeal in the strict sense can only give the decision which should have been given at first instance whereas, on an appeal by way of rehearing, an appellate court can substitute its own decision based on the facts and the law as they then stand. Although this was a case concerning the Family Court, s 27 of the Federal Court of Australia Act 1976 (Cth) is not materially different to the equivalent provision of the Family Law Act 1976 (Cth): Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 at [75] , [2001] HCA 17 ; 205 CLR 507 at 533 per Gleeson CJ and Gummow J. The " proper role of an appellate court under s 25 of the Federal Court Act ... is ordinarily to correct error ": Sobey v Nicol [2007] FCAFC 136 at [72] , [2007] FCAFC 136 ; 245 ALR 389 at 403 to 404 per Branson, Lindgren and Besanko JJ. It is not appropriate to treat an appeal "as though it were a new trial on the evidence and constrained merely by ... unassailable factual findings "; error must be demonstrated: Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833 at [30] , [2001] FCA 1833 ; 117 FCR 424 at 438 per Allsop J (Drummond and Mansfield JJ agreeing).
Case: Murphy v Revis [2008] FMCA 1561
Outcome: cited
2 September 2008 a sequestration order was made against the Appellant, then using her married name: Murphy v Revis [2008] FMCA 1561. The hearing on that occasion took place in the absence of the Appellant and her then solicitor. Thereafter, on 22 December 2008 the Federal Magistrates Court, differently constituted, dismissed an application seeking an order under s 153B of the Bankruptcy Act 1966 (Cth) that the bankruptcy be annulled: Revis v Murphy [2008] FMCA 1638. These were considerations well known to the Federal Magistrate who made the sequestration order: [2008] FMCA 1561 at [6] . They are considerations expressly referred to in his reasons for decision. And that Magistrate's reasons for decision were expressly incorporated into the reasons for decision of the Federal Magistrate whose decision is now under appeal and who dismissed the application made pursuant to s 153B: [2008] FMCA 1638 at [14] . But such assumptions do not lead to a conclusion that the sequestration order now ought to be annulled. As at September 2008 the Magistrate was unaware that the legal representative was not in attendance due to an error in his diary. Uninformed by that fact, the Magistrate proceeded as he did. He concluded that the debtor had " had sufficient opportunity to appear today to oppose the petition if she wished to do so ": [2008] FMCA 1561 at [5] . As the true facts later unfolded, it is now apparent that the Appellant was not given this opportunity to be heard. But any denial of procedural fairness, it is considered, has not occasioned any prejudice to the Appellant because: she was given an opportunity in December 2008 to canvas the events that took place in April and September 2008 and to then advance whatever submissions she saw fit. Indeed, if there had been a denial of procedural fairness on that occasion, it may well have been suffered by the Respondent. The Respondent complains that in December 2008 the Federal Magistrate took into account an affidavit and further submissions filed by the now Appellant five days after the application had been heard; and the Appellant was again extended the opportunity as at the date of the hearing of the present appeal to advance whatever submissions she thought appropriate in respect to both the making of the order extending the life of the petition and the making of the sequestration order. In the absence of any reason to reach a contrary conclusion, it is thus considered that any denial of procedural fairness in the making of either the April or September 2008 decisions has occasioned the Appellant no prejudice and provides no basis for concluding that the sequestration order now ought to be annulled pursuant to s 153B. The Appellant further contends that the present Respondent in pursuing bankruptcy proceedings has embarked upon an abuse of process.
Case: NBCI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 280
Outcome: cited
the power to dismiss an appeal for want of prosecution is a power available to be exercised in an appropriate case. " [S]uccessive and cavalier omissions by the appellant " led the Full Court to dismiss an appeal in NBCI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 280. So, too, can " persistent breach of the Court's directions ": Khera v Jones [2008] FCA 548 at [16] per Buchanan J. This power can be invoked in respect to all appeals, including bankruptcy appeals: e.g. Singh v Official Trustee in Bankruptcy [2008] FCA 544. In the present appeal there is a legitimate basis upon which the application is being advanced by the Respondent. Left to one side when considering the merits of the present application to dismiss for want of prosecution have been such factors as the commencement by the present Appellant of a District Court proceeding. That proceeding was commenced subsequent to the service of the petition. Its procedural course was the subject of criticism by the Federal Magistrates Court. Such factors have been left to one side, as the " want of prosecution " to which O 52 r 38(1)(a) is directed is a want of prosecution of the " appeal "; defaults or procedural irregularities in other proceedings may appear to assume little (if any) immediate relevance when that provision is invoked. In the present appeal, the Appellant failed to file an index to the Appeal Book , to prepare an Appeal Book or to file submissions as directed. After the Notice of Appeal was filed in this Court on 19 January 2009, the Appellant took no step &#8212; or certainly undertook inadequate steps &#8212; prior to 17 April and 5 May 2009 to ensure that her appeal would be ready for hearing. As was the case in Dunstan v Human Rights and Equal Opportunity Commission [2007] FCA 1326 at [17] , the present Appellant has been extended " every opportunity to litigate [her] complaints " and " considerable procedural leeway " has been extended to her. The present case is also in some ways comparable to NBCI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 280 where Ryan, Merkel and Conti JJ dismissed an appeal pursuant to O 52 r 38(1)(a) for like failures by the there appellant, those failures being characterised by their Honours as " successive and cavalier omissions ".
Case: Pollock v Deputy Federal Commissioner of Taxation (1994) 94 ATC 4148
Outcome: cited
is for an applicant for annulment to bring himself within s 153B and to satisfy the Court that the sequestration order ought not to have been made: Pollock v Deputy Federal Commissioner of Taxation (1994) 94 ATC 4148 ; Rigg v Baker [2006] FCAFC 179 at [63] , [2006] FCAFC 179 ; 155 FCR 531 at 544 per French J (as His Honour then was). The standard of proof is that of the balance of probabilities: Edelsten v Deputy Commissioner of Taxation (Cth) (1986) 86 ALR 257.