mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Jackson v Sterling Industries Limited [1987] HCA 23 ; (1987) 162 CLR 612
Outcome: cited
Section 15 of the FMA is in effect the same as s 23 of the Federal Court of Australia Act 1976 (Cth) ('the Federal Court Act'). The width of the power provided by s 23 was considered in Jackson v Sterling Industries Limited [1987] HCA 23 ; (1987) 162 CLR 612. At 618 Wilson and Dawson JJ referred to the power under s 23 of the Federal Court Act as an implied power. At page 619 their Honours said: 'The power given by s 23 is expressly limited to the making of orders in relation to matters in which the Court has jurisdiction and it does not extend the jurisdiction of the Federal Court.' Similar observations may be made of s 15 of the FMA which expressly limits that power to matters in respect of which the FMC has jurisdiction. Section 15 has been used, for example, as a power to issue subpoenas (see: Rana v Fergusson &amp; Ors (No 1) [2003] FMCA 293) , to issue orders in the nature of Mareva injunctions (see: Mather v Luttrell Ltd &amp; Ors [2003] FMCA 62) , to make orders for indemnity costs (see: SZBCE v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 1933) , and to prevent abuse of the Court's procedures (see: SZDCJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1500). In each case, the Court possessed jurisdiction to make the order as being ancillary to the jurisdiction already possessed by it pursuant to a Federal statute.
Case: Mather v Luttrell Ltd &amp; Ors [2003] FMCA 62
Outcome: referred to
Section 15 of the FMA is in effect the same as s 23 of the Federal Court of Australia Act 1976 (Cth) ('the Federal Court Act'). The width of the power provided by s 23 was considered in Jackson v Sterling Industries Limited [1987] HCA 23 ; (1987) 162 CLR 612. At 618 Wilson and Dawson JJ referred to the power under s 23 of the Federal Court Act as an implied power. At page 619 their Honours said: 'The power given by s 23 is expressly limited to the making of orders in relation to matters in which the Court has jurisdiction and it does not extend the jurisdiction of the Federal Court.' Similar observations may be made of s 15 of the FMA which expressly limits that power to matters in respect of which the FMC has jurisdiction. Section 15 has been used, for example, as a power to issue subpoenas (see: Rana v Fergusson &amp; Ors (No 1) [2003] FMCA 293) , to issue orders in the nature of Mareva injunctions (see: Mather v Luttrell Ltd &amp; Ors [2003] FMCA 62) , to make orders for indemnity costs (see: SZBCE v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 1933) , and to prevent abuse of the Court's procedures (see: SZDCJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1500). In each case, the Court possessed jurisdiction to make the order as being ancillary to the jurisdiction already possessed by it pursuant to a Federal statute.
Case: Philip Morris Incorporated and Another v Adam P Brown Male Fashions Proprietary Limited; United States Surgical Corporation v Hospital Products International Proprietary Limited and Others [1981] HCA 7 ; (1981) 148 CLR 457
Outcome: cited
In Philip Morris Incorporated and Another v Adam P Brown Male Fashions Proprietary Limited; United States Surgical Corporation v Hospital Products International Proprietary Limited and Others [1981] HCA 7 ; (1981) 148 CLR 457 at 474, Barwick CJ said of the application of s 32 of the Federal Court Act: 'Thus, there may be circumstances in which the matter does not in substance itself attract federal jurisdiction, though that which attracts federal jurisdiction must in some way relate to the matter. Once federal jurisdiction is attracted, it is not lost because the claim or assertion which attracted it has not been substantiated or has been displaced by some countervailing fact. Once attracted, by whatever path attracted, the jurisdiction persists to enable the Court to resolve the matter.' Since s 18 of the FMA is in virtually identical terms to s 32 of the Federal Court Act, his Honour's observations are pertinent to the associated jurisdiction of the FMC. 27 There are however, limits to the type of matter which can properly be described as 'associated' with the jurisdiction of a federal court. Barwick CJ expressed the following caution at 474: 'But the jurisdiction will not extend to any other matter, though that other matter might in some sense be an allied or associated matter. To be outside the accrued jurisdiction, however, the other matter must be separate and disparate from the matter in relation to or in connexion with which federal jurisdiction has been attracted.' 28 Gibbs J (as he then was) said of the extent of the jurisdiction of the Court to deal with matters, other than federal claims at 499: 'The cases to which I have referred show that if a party claims relief on two different legal grounds, but the facts on which the relief is sought on each ground are identical, and the relief sought on each ground is the same in substance if not in form, there is only one matter for determination.'
Case: Rana v Fergusson &amp; Ors (No 1) [2003] FMCA 293
Outcome: referred to
Section 15 of the FMA is in effect the same as s 23 of the Federal Court of Australia Act 1976 (Cth) ('the Federal Court Act'). The width of the power provided by s 23 was considered in Jackson v Sterling Industries Limited [1987] HCA 23 ; (1987) 162 CLR 612. At 618 Wilson and Dawson JJ referred to the power under s 23 of the Federal Court Act as an implied power. At page 619 their Honours said: 'The power given by s 23 is expressly limited to the making of orders in relation to matters in which the Court has jurisdiction and it does not extend the jurisdiction of the Federal Court.' Similar observations may be made of s 15 of the FMA which expressly limits that power to matters in respect of which the FMC has jurisdiction. Section 15 has been used, for example, as a power to issue subpoenas (see: Rana v Fergusson &amp; Ors (No 1) [2003] FMCA 293) , to issue orders in the nature of Mareva injunctions (see: Mather v Luttrell Ltd &amp; Ors [2003] FMCA 62) , to make orders for indemnity costs (see: SZBCE v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 1933) , and to prevent abuse of the Court's procedures (see: SZDCJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1500). In each case, the Court possessed jurisdiction to make the order as being ancillary to the jurisdiction already possessed by it pursuant to a Federal statute.
Case: Re Wakim; Ex parte McNally and Another; Re Wakim; Ex parte Darvall; Re Brown and Others; Ex parte Amann and Another; Spinks and Others v Prentice [1999] HCA 27 ; (1999) 198 CLR 511
Outcome: cited
In Re Wakim; Ex parte McNally and Another; Re Wakim; Ex parte Darvall; Re Brown and Others; Ex parte Amann and Another; Spinks and Others v Prentice [1999] HCA 27 ; (1999) 198 CLR 511 at 585 Gummow and Hayne JJ said of the associated jurisdiction: 'So, too, there is but one matter where different claims are so related that the determination of one is essential to the determination of the other (377), as, for example, in the case of third party proceedings or where there are alternative claims for the same damage and the determination of one will either render the other otiose or necessitate its determination. Conversely, claims which are "completely disparate" (378), "completely separate and distinct" (379) or "distinct and unrelated' (380) are not part of the same matter.' These authorities confirm that to enliven the associated jurisdiction of a court invested with federal jurisdiction, the facts must be common to each matter and the relief sought must be substantially the same. 31 Section 18 of the FMA provides a source of jurisdiction in associated 'matters'. A 'matter' must be a justiciable dispute and not merely a legal proceeding. In In Re the Judiciary Act 1903-1920 and In Re The Navigation Act 1912-1920 [1921] HCA 20 ; (1921) 29 CLR 257 at 265 the majority, having considered an argument that the word 'matter' in s 76 of the Constitution referred only to a legal proceeding, said: 'We do not accept this contention; we do not think that the word " matter" in sec. 76 means a legal proceedings, but rather the subject matter for determination in a legal proceedings. In our opinion there can be no matter within the meaning of the section unless there is some immediate right, duty or liability to be established by the determination of the Court.' See also: The Queen v Kirby and Others; Ex parte Boilermakers' Society of Australia [1956] HCA 10 ; (1956) 94 CLR 254 at 272-274; The Queen v The Trade Practices Tribunal and Others; Ex parte Tasmanian Breweries Proprietary Limited [1970] HCA 8 ; (1970) 123 CLR 361 per Kitto J at 374; Re Wakim; Ex parte McNally 198 CLR [10].
Case: SZBCE v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 1933
Outcome: cited
Section 15 of the FMA is in effect the same as s 23 of the Federal Court of Australia Act 1976 (Cth) ('the Federal Court Act'). The width of the power provided by s 23 was considered in Jackson v Sterling Industries Limited [1987] HCA 23 ; (1987) 162 CLR 612. At 618 Wilson and Dawson JJ referred to the power under s 23 of the Federal Court Act as an implied power. At page 619 their Honours said: 'The power given by s 23 is expressly limited to the making of orders in relation to matters in which the Court has jurisdiction and it does not extend the jurisdiction of the Federal Court.' Similar observations may be made of s 15 of the FMA which expressly limits that power to matters in respect of which the FMC has jurisdiction. Section 15 has been used, for example, as a power to issue subpoenas (see: Rana v Fergusson &amp; Ors (No 1) [2003] FMCA 293) , to issue orders in the nature of Mareva injunctions (see: Mather v Luttrell Ltd &amp; Ors [2003] FMCA 62) , to make orders for indemnity costs (see: SZBCE v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 1933) , and to prevent abuse of the Court's procedures (see: SZDCJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1500). In each case, the Court possessed jurisdiction to make the order as being ancillary to the jurisdiction already possessed by it pursuant to a Federal statute.
Case: SZDCJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1500
Outcome: cited
Section 15 of the FMA is in effect the same as s 23 of the Federal Court of Australia Act 1976 (Cth) ('the Federal Court Act'). The width of the power provided by s 23 was considered in Jackson v Sterling Industries Limited [1987] HCA 23 ; (1987) 162 CLR 612. At 618 Wilson and Dawson JJ referred to the power under s 23 of the Federal Court Act as an implied power. At page 619 their Honours said: 'The power given by s 23 is expressly limited to the making of orders in relation to matters in which the Court has jurisdiction and it does not extend the jurisdiction of the Federal Court.' Similar observations may be made of s 15 of the FMA which expressly limits that power to matters in respect of which the FMC has jurisdiction. Section 15 has been used, for example, as a power to issue subpoenas (see: Rana v Fergusson &amp; Ors (No 1) [2003] FMCA 293) , to issue orders in the nature of Mareva injunctions (see: Mather v Luttrell Ltd &amp; Ors [2003] FMCA 62) , to make orders for indemnity costs (see: SZBCE v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 1933) , and to prevent abuse of the Court's procedures (see: SZDCJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1500). In each case, the Court possessed jurisdiction to make the order as being ancillary to the jurisdiction already possessed by it pursuant to a Federal statute.
Case: The Queen v Kirby and Others; Ex parte Boilermakers' Society of Australia [1956] HCA 10 ; (1956) 94 CLR 254
Outcome: referred to
Section 18 of the FMA provides a source of jurisdiction in associated 'matters'. A 'matter' must be a justiciable dispute and not merely a legal proceeding. In In Re the Judiciary Act 1903-1920 and In Re The Navigation Act 1912-1920 [1921] HCA 20 ; (1921) 29 CLR 257 at 265 the majority, having considered an argument that the word 'matter' in s 76 of the Constitution referred only to a legal proceeding, said: 'We do not accept this contention; we do not think that the word " matter" in sec. 76 means a legal proceedings, but rather the subject matter for determination in a legal proceedings. In our opinion there can be no matter within the meaning of the section unless there is some immediate right, duty or liability to be established by the determination of the Court.' See also: The Queen v Kirby and Others; Ex parte Boilermakers' Society of Australia [1956] HCA 10 ; (1956) 94 CLR 254 at 272-274; The Queen v The Trade Practices Tribunal and Others; Ex parte Tasmanian Breweries Proprietary Limited [1970] HCA 8 ; (1970) 123 CLR 361 per Kitto J at 374; Re Wakim; Ex parte McNally 198 CLR [10].
Case: The Queen v The Trade Practices Tribunal and Others; Ex parte Tasmanian Breweries Pty Ltd [1970] HCA 8 ; (1971) 123 CLR 361
Outcome: referred to
Section 18 of the FMA provides a source of jurisdiction in associated 'matters'. A 'matter' must be a justiciable dispute and not merely a legal proceeding. In In Re the Judiciary Act 1903-1920 and In Re The Navigation Act 1912-1920 [1921] HCA 20 ; (1921) 29 CLR 257 at 265 the majority, having considered an argument that the word 'matter' in s 76 of the Constitution referred only to a legal proceeding, said: 'We do not accept this contention; we do not think that the word " matter" in sec. 76 means a legal proceedings, but rather the subject matter for determination in a legal proceedings. In our opinion there can be no matter within the meaning of the section unless there is some immediate right, duty or liability to be established by the determination of the Court.' See also: The Queen v Kirby and Others; Ex parte Boilermakers' Society of Australia [1956] HCA 10 ; (1956) 94 CLR 254 at 272-274; The Queen v The Trade Practices Tribunal and Others; Ex parte Tasmanian Breweries Proprietary Limited [1970] HCA 8 ; (1970) 123 CLR 361 per Kitto J at 374; Re Wakim; Ex parte McNally 198 CLR [10].
Case: EFG Australia Ltd v Kennedy (unreported, NSESC, Bryson J, 2 August 1995)
Outcome: cited
Finally, I accept the submissions of Mr O'Brien for the applicant that, given what appear to be the deliberate actions of the first, second and third respondents in selling counterfeit GHD products as well as genuine GHD products, and the active concealment of that conduct as alleged by the applicant, there is a real possibility that the respondents will destroy the incriminating products and documents if the order is not made: EFG Australia Ltd v Kennedy (unreported, NSWSC, Bryson J, 2 August 1995). 11 Accordingly, I am prepared to make the search order in the terms sought by the applicant in the claim for interim relief as set out in the application, subject to the provision of a properly executed undertaking by Mr Wetzig, solicitor for the applicant, and the filing with the Court of undertakings by independent solicitors in New South Wales. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate: Dated: 20 March 2007 Counsel for the Applicant: D O'Brien Solicitor for the Applicant: Fox Lawyers Solicitor for the Respondents: The First, Second, Third, and Fourth Respondents did not appear Date of Hearing: 9 March 2007 Date of Judgment: 9 March 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/347.html
Case: Re Insurance Australia Group Limited [2003] FCA 581
Outcome: cited
To the extent that it is relevant, I am satisfied that no substantial injustice has been or is likely to be caused to any person by the making of the orders that I propose. I have been referred to the decision of Lindgren J in Re Insurance Australia Group Limited [2003] FCA 581 , concerning ss 723(3) and 724 (1) of the Corporations Act and the possible application of s 1322(4)(d) to failure to comply with those provisions. I have no reservations at all concerning the correctness of his Honour's decision. However, there is a difference between s 625 on the one hand, and s 723 on the other. 12 Section 723 provides that, where there is failure to apply for admission of securities pursuant to a public offering, the issue or transferring of securities in response to an application made under a relevant disclosure document is void, and the person offering the securities must return the money. That is to say, the Act itself operates in the event of failure to make the relevant application to strike down and invalidate a transfer. In the present circumstances, there is a term of a contractual arrangement between private parties that is the source of difficulty. I am satisfied, however, that s 1325A confers an appropriate power on the Court, whether or not ss 1322 or 1325D does so. 13 In the circumstances I propose to make an order that the Statutory Offer Condition be varied by substituting the words " no later than 19 February 2007 " for the words " within a period of seven days after the start of the offer period " and to order that the Statutory Offer Condition of each contract made by acceptance of the offers be deemed to have been satisfied on 19 February 2007. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett. Associate: Dated: 22 March 2007 Counsel for the Applicant: A S Bell SC Solicitor for the Applicant: Mallesons Stephen Jaques Date of Hearing: 5 March 2007 Date of Judgment: 5 March 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/421.html
Case: Tru Floor Service Pty Ltd v Jenkins [2006] FCA 119
Outcome: cited
The plaintiffs' case is that: (a) the defendants were directors within the meaning of the Law or the Act of Chick Vic when it incurred a substantial number of unsecured debts to them (totalling $2,116,464.20) that remain unpaid; (b) Chick Vic was insolvent at the time it incurred those debts or became insolvent as a result of incurring those debts; (c) at the time those debts were incurred, there were reasonable grounds for suspecting that Chick Vic was insolvent or, as a result of incurring those debts, would become insolvent; (d) at the time those debts were incurred, the defendants were, or a reasonable person in a like position in a company in Chick Vic's position would have been, aware that there were the grounds referred to in par (c); and (e) as a result, the defendants ought to compensate them for Chick Vic's failure to pay the debts referred to in par (a). That case is pleaded in a statement of claim that was first filed on 6 September 2001. It was amended from time to time. Notwithstanding its age, it was heavily amended only a week before the trial commenced: see Tru Floor Service Pty Ltd v Jenkins [2006] FCA 119. I will call the current amended pleading "the statement of claim". 11 At the conclusion of the plaintiffs' case counsel for the defendants submitted that there was no case for them to answer. Argument then ensued as to whether the defendants were disabled from making a no case submission by reason of having tendered exhibits during cross-examination of the plaintiffs' witnesses. 12 The defendants relied on O 32 r 4(4) of the Rules of Court for the proposition that a party who has tendered documents in evidence may not make a no case submission. Subrule (1) empowers the Court to give directions as to the "order of evidence and addresses and generally as to the conduct of the trial". Subrule (2) deals with "the order of evidence and addresses ... as provided by the following sub-rules of this rule", namely sub-rs (3) to (6). Subrule (3) provides that the party to begin may make an address opening his case and may then adduce evidence. Subrule (4) provides: "Where, at the conclusion of the evidence for the party to begin, no document or thing has been admitted in evidence on tender by the opposite party, the opposite party may elect to adduce evidence or not to adduce evidence." If the opposite party does not adduce evidence, the party to begin may make a closing address and the opposite party then makes its address: sub-r (5). If the opposite party adduces evidence, that party may make an opening address before adducing evidence, and after the conclusion of that evidence may make a closing address, whereupon the party to begin may make a closing address: sub-r (6).
Case: Weller v O'Brien [1962] 1 WLR 885
Outcome: cited
Subrule (4) does not expressly provide for the case where, at the conclusion of the plaintiff's evidence, the defendant has tendered a document or thing in evidence. Subrules (5) and (6) deal only with cases that fall within sub-r (4). In that situation the gap is to be filled pursuant to sub-r (1): the Court gives directions as to the order of evidence and addresses. Likely directions will be to the effect of those contained in r 49.01(6)(b) of the Rules of the Supreme Court of Victoria. Rule 49.01(1) corresponds with this Court's O 32 r 4(1). Rule 49.01(3) is to substantially the same effect as O 32 r 4(2). Rule 49.01(4) corresponds with O 32 r 4(3). Rule 49.01(5) is to substantially the same effect as O 32 rs 4(4) to (6). What is not expressly dealt with in O 32 r 4(4) is covered by r 49.01(6): "When, in the course of the case for the party who begins, any document or thing is admitted in evidence on tender by the opposite party, and at the conclusion of that case (a) the opposite party adduces evidence, the order of proceedings shall be as provided by paragraph (5)(a); (b) the opposite party does not adduce evidence, he may make an address and then the party who began may make a closing address." The "order of proceedings" referred to in r 49.01(6)(a) is that the opposite party makes an opening address, and after adducing evidence makes a closing address, and then the party who began makes a closing address. Subrule (6)(b) states the effect of Weller v O'Brien [1962] 1 WLR 885, which held that a defendant who elects to call no evidence loses the right of last address if he has put a document in evidence in the course of cross-examining on the plaintiff's case. 14 Weller was displaced in England and Wales by O 35 r 7(3) of the Rules of the Supreme Court (RSC), introduced in 1967. It read: "If the defendant elects not to adduce evidence, then, whether or not the defendant has in the course of cross-examination of a witness for the plaintiff or otherwise put in a document, the plaintiff may, after the evidence on his behalf has been given, make a second speech closing his case and the defendant shall then state his case." In lieu of giving a direction under O 32 r 4(1) along the lines of the Supreme Court of Victoria's r 49.01(6)(b), this Court could give a direction along the lines of RSC O 35 r 7(3). Which course it chooses to follow would depend on how it viewed Weller . 15 I do not think O 32 r 4(4) has any bearing on a no case submission. As indicated, subrules (2) to (4) are concerned with the order of evidence and addresses. Subrule (4) does not itself deal with a defendant who has tendered a document or thing in the course of cross-examining the plaintiff's witnesses, and who does not adduce further evidence. However, that gap is to be filled by directions as to the order of evidence and addresses: for example, that the defendant does not have the right of last address enjoyed by a defendant who has not so tendered a document or thing and who does not adduce evidence, or alternatively, that he does have that right.