mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Wanted World Wide (Australia) Limited v Commissioner of Taxation [2004] FCA 1063
Outcome: approved
There is some conflict in the authorities as to whether the Court should act on the parties' admissions by making a finding of insolvency without any final determination on the evidence as to the correctness of that determination; see Crosbie, in the matter of Trollope Silverwood &amp; Beck Pty Ltd (In Liquidation) v Commissioner of Taxation [2003] FCA 922 , Cadima Express v Deputy Commissioner of Taxation [1999] NSWSC 1143 ; (1999) 33 ACSR 527, Dean-Willcocks v Commissioner of Taxation (No 2) [2004] NSWSC 286 , Hall and another (as liquidators of Reynolds Wines Ltd) v Commissioner of Taxation [2004] NSWSC 985 , S J P Formwork (Aust) Pty Ltd (in liq) v Deputy Commissioner of Taxation (2000) 34 ACSR 604 and Wanted World Wide (Australia ) Limited v Commissioner of Taxation [2004] FCA 1063. In the present case, there is no dispute between any of the parties who have been served as to insolvency. 7 The approach of His Honour in Crosbie has been considered and rejected in the other cases referred to above. In Wanted World Wide, Lander J of this court refused to follow Crosbie and distinguished the authorities relied on in that case. At [5], His Honour sets out the reasoning and governing considerations in favour of his conclusion that s 588FF allows orders to made by consent without the necessity to make a finding after examination of all the evidence. He considered that the court was entitled to act on the admissions and be satisfied that an order could be made. His Honour placed particular emphasis on the practical advantages of enabling an order to be made on the admissions of the parties before the court, in order to avoid a waste of time, effort, resources and expense. His Honour considered that the Court is entitled to act on admissions and be satisfied that an order should be made. He considered that the construction given in Crosbie operates to defer parties coming to a significant agreement with the liquidator to avoid costs. He referred especially to the significant expenditure to procure an expert's reports to establish undisputed insolvency at the expense of unsecured creditors. In that case, His Honour acted on the admissions and made the order.
Case: Australian Competition and Consumer Commission v Global Prepaid Communications Pty Ltd (in liq) [2006] ATPR 42-103 , [2006] FCA 146
Outcome: related
This is an application pursuant to O 62 r 4(2)(c) of the Federal Court Rules that certain costs ordered to be payable by the respondents in this matter be assessed as a gross sum. The orders were made on 27 February 2006 ( Australian Competition and Consumer Commission v Global Prepaid Communications Pty Ltd (in liq) [2006] ATPR 42-103 , [2006] FCA 146 ; Australian Competition and Consumer Commission v Global Prepaid Communications Pty Ltd (in liq) (No 2) [2006] ATPR 42-104 , [2006] FCA 157). Order 42 provided that the third, fourth, fifth, sixth and seventh respondents pay the applicant's costs of the proceedings including all reserved costs, except those costs provided by order 43. Order 43 provided that the third and fourth respondents pay the applicant's costs of the hearing on 10, 25 and 26 May 2005.
Case: Australian Competition and Consumer Commission v Global Prepaid Communications Pty Ltd (in liq) (No 2) [2006] ATPR 42-104 , [2006] FCA 157
Outcome: related
This is an application pursuant to O 62 r 4(2)(c) of the Federal Court Rules that certain costs ordered to be payable by the respondents in this matter be assessed as a gross sum. The orders were made on 27 February 2006 ( Australian Competition and Consumer Commission v Global Prepaid Communications Pty Ltd (in liq) [2006] ATPR 42-103 , [2006] FCA 146 ; Australian Competition and Consumer Commission v Global Prepaid Communications Pty Ltd (in liq) (No 2) [2006] ATPR 42-104 , [2006] FCA 157). Order 42 provided that the third, fourth, fifth, sixth and seventh respondents pay the applicant's costs of the proceedings including all reserved costs, except those costs provided by order 43. Order 43 provided that the third and fourth respondents pay the applicant's costs of the hearing on 10, 25 and 26 May 2005.
Case: Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56 ; (2007) 241 ALR 32 , (2007) 5 ABC(NS) 419
Outcome: referred to
There is the complication of intervening bankruptcies. It is submitted that this situation falls within the category discussed by the majority of the High Court in Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56 ; (2007) 241 ALR 32 , (2007) 5 ABC(NS) 419 at [35], [36] and [67]. As here, the order was made before bankruptcy ensued and, therefore, even though not quantified, the debt is provable in bankruptcy. However, that means that, generally speaking, one cannot pursue a matter in court against the debtor once bankruptcy ensues. The appropriate thing to do is to file a proof of debt. Recognising that this is likely to be the position, the applicant seeks leave to proceed against both of the trustees. I am satisfied that both trustees have knowledge of this application. One, as I have said, has appeared and does not oppose leave; the other, having been given notice of the application, responded that he did not propose to appear in the matter. Those trustees have not formally been made parties to the proceeding. Counsel submits that leave should be granted and the matter proceed today for a number of reasons. I should note that the lump sum order which I propose to make will be made in relation to the fifth and sixth respondents in any event and, thus, I have had to consider the merits of the matter. 7 To lodge a proof of debt in each of the bankrupt estates would, first of all, require a proof of debt to be prepared. Secondly, it would require the trustee to consider that proof of debt and that would require some investigation. All of that seems to me to be time and money which should not be spent. It is unlikely to be recovered from anybody and, as the Court has had to do the work, it seems pointless to have it repeated. None of the relevant parties appear to oppose the orders. It seems to me that there will be unnecessary duplication if leave is not granted. Furthermore, the quantification of costs, the question that arises here, is very much a matter for the Court and Court officials and those with the knowledge of the way these things are done. The trustees in bankruptcy would have no particular qualifications to assess the situation. So as a matter of substance, I am satisfied that the orders should be made as sought. 8 I have raised with counsel the question of the trustees not being parties to the litigation. The grant of leave to proceed against the named individual respondents is probably sufficient for the technicalities to be observed. It is then for the trustees to deal with the result which ensues. If this occasions any difficulty, or if there is any need for any further order, I will grant special liberty to apply to the trustees of the bankrupt estates of the third and fourth respondents.
Case: Hadid v Lenfest Communications Inc [2000] FCA 628
Outcome: followed
The principles which govern the application and the circumstances under which this rule is to be applied were dealt with by Lehane J in Hadid v Lenfest Communications Inc [2000] FCA 628 particularly at [22] [27]; and by Sackville J in Seven Network Ltd v News Ltd [2007] FCA 2059 , particularly at [16] and [25] [34]. I need not repeat those principles here. I am satisfied that Ms Vine-Hall's assessment is in accordance with the principles reflected in those passages from those judgments. I am therefore satisfied as to the merits of the application.
Case: Seven Network Ltd v News Ltd [2007] FCA 2059
Outcome: followed
The principles which govern the application and the circumstances under which this rule is to be applied were dealt with by Lehane J in Hadid v Lenfest Communications Inc [2000] FCA 628 particularly at [22] [27]; and by Sackville J in Seven Network Ltd v News Ltd [2007] FCA 2059 , particularly at [16] and [25] [34]. I need not repeat those principles here. I am satisfied that Ms Vine-Hall's assessment is in accordance with the principles reflected in those passages from those judgments. I am therefore satisfied as to the merits of the application.
Case: S1174 of 2002 v Refugee Review Tribunal [2004] FCA 289
Outcome: referred to
support of the contention of counsel for the applicant on the issue of delay, I was referred to his involvement in the Muin and Lie class action, and the circumstance that in February 2004, in the context of proceedings S1174 of 2002 v Refugee Review Tribunal [2004] FCA 289 , Emmett J found at [29]-[30] as follows: '29. The second possible matter of prejudice was a concern that delay might be advanced as an answer to any claim for relief. The Minister has assured the Court that she will not make a submission in any future proceeding that there is no satisfactory explanation for the applicant's delay, from the time when the applicant was joined as a representative party in the High Court, to the time of refusal of an order nisi. Any delay from the time of the making of a decision by the Tribunal and the joinder of the applicant in the High Court proceeding would still remain to be explained, so would any delay from the time of refusal of an order nisi until the commencement of any fresh proceeding. 30. I do not consider that there would be any prejudice to the applicant or to any of the other applicants by the refusal of an order nisi. No such refusal would stand in the way of successful prosecution of any subsequent application for prerogative writ relief if properly commenced and particularised.' The applicant contended on that footing that 'this assurance given by the Minister's solicitor' applies in the present case. The Minister's response was that account needs to be taken of the context of the Minister's assurance, being the existence of about 700 applications for order nisi remitted from the High Court to the Federal Court in S1174 of 2002. The Minister submitted that 'the assurance that no submission would be made in any future proceedings that there was no satisfactory explanation for the applicant's delay from the time when the applicant was joined as a representative party in the High Court to the time of his Honour's judgment, was in respect of future first instance proceedings brought challenging the Tribunal's decision'. Assuming the foregoing explanations concerning involvement in the class action have some discrete basis in merit, the fact remains that the applicant's engagement in the class action occurred in the context of the unfavourable decision already entered against him by O'Connor J, and for whatever reasons of his own, he chose to leave the adverse findings by her Honour unchallenged by way of appeal, and to pursue whatever refugee status he might have in the context of that class action.
Case: Rajaratnam v Minister for Immigration and Multicultural and Indigenous Affairs (2000) 62 ALD 73
Outcome: referred to
as to that first ground for review, the applicant referred to Rajaratnam v Minister for Immigration and Multicultural Affairs (2000) 62 ALD 73 at [42]-[50], where a Full Federal Court was said by the applicant to have recognised that extortion may have dual motivations, one of which may be Convention based and the other not so. The applicant asserted that there was evidence that people such as the applicant may be targeted in the manner complained of, both because they have money and because they belong to a minority religion. By way of asserted illustration, the applicant pointed to the testimony of a witness that the applicant was '... at risk of being kidnapped and possibly killed if he returned to Bangladesh', and all that at the hands of 'people wanting money' because he 'belongs to a minority religion'. However the applicant acknowledged that he had testified by his statement to the Tribunal to the effect that he did not think he would have been kidnapped if he was not perceived as having money, but that so much did not derogate from the circumstance that people in his position were targeted in Bangladesh because they are 'perceived as having money', and also because they 'belong to minority religions'. It was contended by the applicant that the failure of the Tribunal to recognise that dual motivation gave rise to jurisdictional error on the Tribunal's part. It was contended by the applicant that Raphael FM 'saw some merit in the grounds [of appeal] in light of the decisions of the High Court in Ibrahim , and earlier in the Full Court in Rajaratnam , both of which decisions were of course handed down after O'Connor J's decision in June 1998. I was referred to the reasons for decision of Raphael FM in particular at [17], where the following appears: 'It may not be impossible for the applicant to obtain leave from the Full Bench of the Federal Court to appeal against her Honour's decision and to argue in that appeal that in the light of subsequent authorities her Honour may have been in error.' The expression ' may not be impossible ' hardly reflects a positive view as to existence of discernible merit. In any event the applicant contended that if I was to be '... uncertain whether or not to grant an extension of time, an intermediate position would be to allow the matter to proceed to a hearing before the Full Court on both the application for extension of time to appeal and the appeal'. There is considerable force in the Commissioner's contention that the combination of the factors of lengthy delay unexplained at least satisfactorily, together with an absence of demonstration of reasonable good prospects of success, should weigh sufficiently heavily against the applicant's application for an extension of time to appeal the decision of O'Connor J back in June 1998. Those proceedings constituted of course an attempted review of a Tribunal decision made on 30 December 1997 which was unsuccessful in the Federal Court.
Case: Minister for Immigration and Multicultural Affairs v Haji Ibrahim [2000] HCA 55 ; (2000) 204 CLR 1
Outcome: referred to
applicant placed reliance in the context of this second ground upon the decision of the High Court in Minister for Immigration and Multicultural Affairs v Haji Ibrahim [2000] HCA 55 ; (2000) 204 CLR 1, which was said to stand as authority for the principle that persecution did not require 'systematic conduct' ; I was referred in that regard to the reasons for judgment of Gleeson CJ at [5], Gaudron J at [33], McHugh J at [99]-[101], Gummow J at [133]-[135], Kirby J at [193]-[194] and Callinan at [221]-[225]. The observation of McHugh J, who gave one of the two High Court judgments in favour of the putative but unsuccessful (in the view of the majority) refugee, spoke of that non-statutory notion as importing the idea of non-random. I am unable to identify in any event any viable issue arising in the context of the proceedings concerning any such non-statutory notion, much less any basis reflecting likelihood of error in relation to the foregoing finding of the Tribunal below, and no such error has been identified by the applicant.
Case: Kalaba, Lazar v The Queen [1996] FCA 908
Outcome: referred to
applicant referred to the unreported decision of Finn J in Kalaba, Lazar v the Queen [1996] FCA 908 where his Honour indicated what he considered to be the governing principle in the case of delay: 'For present purposes the approach I intend to take is that adopted... in Jones v The Queens and to ask: first, are the reasons the applicant has advanced for his delay sufficient to excuse or at least to explain his delay so as to justify allowing him to institute an appeal out of time? Secondly, has the applicant demonstrated that his appeal may have sufficient prospect of success to make it just that he should now be allowed to proceed with it?' The applicant also referred to the 'long time' it has taken 'each proceedings to resolve due to factors beyond his control', but I am unable to accord significance thereto in terms of it being a circumstance that would amount to a 'special reason' within Order 52 Rule 15(1) , it having been the applicant's implicit choice to pursue that purported perceived avenue of review of the Tribunal decision of 30 December 1997 rather than seek to appeal O'Connor J's longstanding decision. The third issue raised by the applicant concerned his prospects of success on the appeal by way of application for review of the decision of O'Connor J back on 10 June 1998. The applicant asserted that two grounds for review had been propounded to Raphael FM below, which I will now record and discuss.
Case: Minister for Immigration and Multicultural Affairs v Ibrahim (2000) 62 ALD 73
Outcome: referred to
as to that first ground for review, the applicant referred to Rajaratnam v Minister for Immigration and Multicultural Affairs (2000) 62 ALD 73 at [42]-[50], where a Full Federal Court was said by the applicant to have recognised that extortion may have dual motivations, one of which may be Convention based and the other not so. The applicant asserted that there was evidence that people such as the applicant may be targeted in the manner complained of, both because they have money and because they belong to a minority religion. By way of asserted illustration, the applicant pointed to the testimony of a witness that the applicant was '... at risk of being kidnapped and possibly killed if he returned to Bangladesh', and all that at the hands of 'people wanting money' because he 'belongs to a minority religion'. However the applicant acknowledged that he had testified by his statement to the Tribunal to the effect that he did not think he would have been kidnapped if he was not perceived as having money, but that so much did not derogate from the circumstance that people in his position were targeted in Bangladesh because they are 'perceived as having money', and also because they 'belong to minority religions'. It was contended by the applicant that the failure of the Tribunal to recognise that dual motivation gave rise to jurisdictional error on the Tribunal's part.
Case: Allseas International Management v Panroy Bulk Transport SA (The "Star Gazer" and the "Star Delta") [1985] 1 Lloyd's Rep 370
Outcome: cited
agreement to purchase a ship, especially of the size and characteristics of the " Gem of Safaga ", is within the class of contracts for which equity would order specific performance: see Meagher, Gummow &amp; Lehane's, Equity: Doctrines &amp; Remedies (4 th ed 2002) at 659 [20-040]; Eximenco Handels AG v Partredereit Oro Chief and Levantes Maritime Corporation (The "Oro Chief") [1983] 2 Lloyd's Rep 509 at 520-521 per Staughton J; Allseas International Management v Panroy Bulk Transport SA (The "Star Gazer" and the "Star Delta") [1985] 1 Lloyd's Rep 370 at 378 per Neill J, and ss 30 , 56 of the Sale of Goods Act 1923 (NSW).
Case: Blatch v Archer [1774] EngR 2 ; (1774) 1 Cowp 63
Outcome: followed
carries the ultimate burden of proof that the jurisdictional facts exist on which the arrest can be justified. It must establish those facts on the balance of probabilities taking into account all relevant matters: s 140 of the Evidence Act 1995 (Cth); see Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132 ; (2007) 162 FCR 466 at 479-482 [29] - [38] , 488-489 [70]-[73] per Weinberg, Bennett JJ and myself. And, as Lord Mansfield CJ said long ago in Blatch v Archer [1774] EngR 2 ; (1774) 1 Cowp 63 at 65: "It is certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted." See too: Weissensteiner v The Queen [1993] HCA 65 ; (1993) 178 CLR 217 at 225 per Mason CJ, Deane and Dawson JJ; at 233 per Brennan and Toohey JJ.
Case: Calverley v Green [1984] HCA 81 ; (1984) 155 CLR 242
Outcome: cited
when a person purchases and pays for real or personal property and directs that the legal title be transferred into the name of a stranger, the law presumes, in the absence of evidence to the contrary, that the property is held on a resulting trust for the purchaser: Charles Marshall Pty Ltd v Grimsley [1956] HCA 28 ; (1956) 95 CLR 353 at 363-364 per Dixon CJ, McTiernan, Williams, Fullagar and Taylor JJ. Here, as West Asia argued, the co-ownership agreement, the mortgage given by Four M and West Asia's accounting entries are evidence to the contrary. Evidence of the intention of the purchaser at the time of the transaction or so immediately after it that it constitutes a part of it and admissions against interest, will be relevant to rebut the presumption. So will evidence of subsequent dealings: Trustees of the Property of Cummins (a Bankrupt) v Cummins [2006] HCA 6 ; (2006) 227 CLR 278 at 300-301 [65] - [67] per Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ. If the stranger assumes liability under a mortgage given to obtain finance for the purchase, this conduct can be evidence rebutting the presumption: Calverley v Green [1984] HCA 81 ; (1984) 155 CLR 242 at 252 per Gibbs CJ, 257-258 per Mason and Brennan JJ, at 268 per Deane J.
Case: Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304
Outcome: applied
s 19 confers jurisdiction on a court, it should not be construed or hedged about by making implications or imposing limitations that do not appear in its express terms: Shin Kobe Maru 181 CLR at 421; Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304 at 361 [178] per Gummow, Hayne, Heydon and Kiefel JJ. Additionally, s 15AB of the Acts Interpretation Act 1901 (Cth) permits the meaning of an expression in an Act to be confirmed by reference to a report such as ALRC 33 (see s 15AB(1)(a) and (2)(b)): Laemthong International Lines Co Ltd v BPS Shipping Ltd [1997] HCA 55 ; (1997) 190 CLR 181 at 189 per Brennan CJ, 190 per Toohey J, 204 per Gaudron, Gummow and Kirby JJ.
Case: Charles Marshall Pty Ltd v Grimsley [1956] HCA 28 ; (1956) 95 CLR 353
Outcome: applied
when a person purchases and pays for real or personal property and directs that the legal title be transferred into the name of a stranger, the law presumes, in the absence of evidence to the contrary, that the property is held on a resulting trust for the purchaser: Charles Marshall Pty Ltd v Grimsley [1956] HCA 28 ; (1956) 95 CLR 353 at 363-364 per Dixon CJ, McTiernan, Williams, Fullagar and Taylor JJ. Here, as West Asia argued, the co-ownership agreement, the mortgage given by Four M and West Asia's accounting entries are evidence to the contrary. Evidence of the intention of the purchaser at the time of the transaction or so immediately after it that it constitutes a part of it and admissions against interest, will be relevant to rebut the presumption. So will evidence of subsequent dealings: Trustees of the Property of Cummins (a Bankrupt) v Cummins [2006] HCA 6 ; (2006) 227 CLR 278 at 300-301 [65] - [67] per Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ. If the stranger assumes liability under a mortgage given to obtain finance for the purchase, this conduct can be evidence rebutting the presumption: Calverley v Green [1984] HCA 81 ; (1984) 155 CLR 242 at 252 per Gibbs CJ, 257-258 per Mason and Brennan JJ, at 268 per Deane J.