mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Re Kwiatek; Ex parte Big J Ltd v Pattison (1980) 21 FCR 374
Outcome: cited
failure of a secured creditor correctly to state in a creditors' petition that it is secured at all can be cured by the Court permitting an amendment under s 33(1)(b) of the Bankruptcy Act 1966 (Cth): Re Florance; Ex parte Turimetta Properties Pty Limited (No 2) (1980) 39 FLR 400 at 402 per Lockhart J; In Re A Debtor; Ex parte Okill v The Debtor; Okill v Gething [1977] 1 WLR 1308 at 1314C-D per Goulding and Fox JJ; Re Finn; Ex parte Amoco Australia Limited (1982) 41 ALR 487 at 495 per Fitzgerald J. A secured creditor who does not value its security appropriately can also have the petition amended to regularize the position, provided that what is valued is its estimate made in good faith of the value of the security: Bryant v Commonwealth Bank of Australia (unreported FCAFC 24 November 1995 per Beaumont, Whitlam and Moore JJ at 12; see also Re O'Leary; Ex parte Bayne (1985) 61 ALR 674 at 678, 682-683 per Sheppard J applying Lockhart J's decision in Re Wiggins; Ex parte Credit Assistance Pty Ltd (1979) 30 ALR 443 at 446; 36 FLR 182 at 185; see too Re Vassis; Ex parte Leung (1986) 9 FCR 518 at 529-530 per Burchett J; Re Kwiatek; Ex parte Big J Ltd v Pattison (1989) 21 FCR 374 at 383 per Northrop J; see too MacDonald v Official Trustee in Bankruptcy [2001] FCA 140 ; (2001) 107 FCR 72 at 78-79 [27] - [28] ). In the latter case the Full Court said: omission by a petitioning secured creditor from the petition of the matters required to be stated by s 44(3) and (4) is, in our opinion, no less entitled to be called a fundamental defect in the petition as the failure by a petitioner to fully describe the act of bankruptcy referred to in s 40(1)(g) in his petition.'
Case: Re Nolan; Ex parte Westpac Banking Corporation (unreported FCA 4 October 1996) Kiefel J
Outcome: cited
each case it is necessary, where an amendment is sought, to consider any particular consequences to third parties or the debtor flowing from what was erroneously contained in the petition. But the state of mind of the secured petitioning creditor is also relevant to the exercise of the Court's discretion ( Re Nolan; Ex parte Westpac Banking Corporation (unreported FCA 8 October 1996; Kiefel J at p 5). No amendment has been sought here.
Case: Re O'Leary; Ex parte Bayne (1985) 61 ALR 674
Outcome: cited
failure of a secured creditor correctly to state in a creditors' petition that it is secured at all can be cured by the Court permitting an amendment under s 33(1)(b) of the Bankruptcy Act 1966 (Cth): Re Florance; Ex parte Turimetta Properties Pty Limited (No 2) (1980) 39 FLR 400 at 402 per Lockhart J; In Re A Debtor; Ex parte Okill v The Debtor; Okill v Gething [1977] 1 WLR 1308 at 1314C-D per Goulding and Fox JJ; Re Finn; Ex parte Amoco Australia Limited (1982) 41 ALR 487 at 495 per Fitzgerald J. A secured creditor who does not value its security appropriately can also have the petition amended to regularize the position, provided that what is valued is its estimate made in good faith of the value of the security: Bryant v Commonwealth Bank of Australia (unreported FCAFC 24 November 1995 per Beaumont, Whitlam and Moore JJ at 12; see also Re O'Leary; Ex parte Bayne (1985) 61 ALR 674 at 678, 682-683 per Sheppard J applying Lockhart J's decision in Re Wiggins; Ex parte Credit Assistance Pty Ltd (1979) 30 ALR 443 at 446; 36 FLR 182 at 185; see too Re Vassis; Ex parte Leung (1986) 9 FCR 518 at 529-530 per Burchett J; Re Kwiatek; Ex parte Big J Ltd v Pattison (1989) 21 FCR 374 at 383 per Northrop J; see too MacDonald v Official Trustee in Bankruptcy [2001] FCA 140 ; (2001) 107 FCR 72 at 78-79 [27] - [28] ). In the latter case the Full Court said: omission by a petitioning secured creditor from the petition of the matters required to be stated by s 44(3) and (4) is, in our opinion, no less entitled to be called a fundamental defect in the petition as the failure by a petitioner to fully describe the act of bankruptcy referred to in s 40(1)(g) in his petition.'
Case: Re Roberts; Ex parte Australian Telecom Employees Credit Co-operative Ltd (1982) 84 FLR 88
Outcome: applied
Re Roberts; Ex parte Australian Telecom Employees Credit Co-operative Limited (1982) 84 FLR 88, Sweeney J held that a loan contract which provided that the borrower should execute an equitable charge in favour of the lender over the relevant real property and agreed to the lodging of a caveat to protect that interest, created a security in favour of the creditor. He said that the debtor having executed the agreement and accepted the loan pursuant to it had done everything needed to entitle the creditor to require him to execute an equitable charge in a form chosen by the creditor. He referred to Montagu v The Earl of Sandwich (1886) 32 Ch D 525 at 538-539 per Cotton LJ. His Honour held that the loan agreement itself constituted a charge over the interest of the debtor in the relevant real property and that the holder of such a charge was a secured creditor within the meaning of the Bankruptcy Act 1966 (Cth). His Honour's analysis is in my opinion correct and can be applied to the present case. The holder of an equitable mortgage is a secured creditor: Re Roberts; Ex parte Australian Telecom Employees Credit Co-operative Ltd (1982) 84 FLR 88; Re Florance; Ex parte Turimetta Properties Pty Ltd (1979) 28 ALR 403 at 414-415 per Lockhart J, applying Harvey v Commercial Bank of Australia [1937] HCA 81 ; (1937) 58 CLR 382.
Case: Re Sarina; Ex parte Wollondilly Shire Council (1980) 32 ALR 596
Outcome: discussed
McClymonts sought to make a case that they could pay all their debts as and when they were due and payable but had chosen not to, and were thus not insolvent. They relied on the decision of the Full Court in Re Sarina; Ex parte Wollondilly Shire Council (1980) 32 ALR 596. However, in that case, there was both an accepted fact that the debtor could pay his debts but had simply refused (32 ALR at 597). Bowen CJ, CA Sweeney and Lockhart JJ held that the Court's discretion had been enlivened under s 52(2) of the Act and it could make a sequestration order in such circumstances although the occasions on which it would do so would not be frequent (32 ALR at 600). I am not persuaded that I should find, on the evidence before me, that the McClymonts are solvent. Mr McClymont has recently rendered bills for his professional services of $11,200 which he said in evidence would be paid this month. He claims to have other work in progress worth $26,500, the details of which have not been identified at all by him, despite being offered the opportunity in cross examination to do so. The work in progress is not defined as to when it was undertaken or when Mr McClymont will be in a position to render accounts for it. Nor is there any identification of the likelihood of payment when accounts are finally rendered. The mortgage of $300,000 is likely to attract outgoings, even on an interest only basis, of in the order of at least $20,000-$30,000 yearly. Likewise, there are rates, taxes and outgoings to maintain the home unit property. Mr and Mrs McClymont also have to live and incur the ordinary expenses associated with doing so. On their current assets and income as disclosed in the evidence, I do not consider that they have proved that they are solvent, particularly having regard to the fact that they have three judgment debts for over $100,000 and no ready cash to meet those liabilities other than the claimed amounts to which Mr McClymont says he is entitled arising from his father's beneficence. It is unlikely that after a lengthy estrangement, a parent will treat the estranged child equally with the other children. Of course, everything in life is possible. But it was for Mr McClymont to put on evidence to satisfy me that it was likely that he was presently entitled to realize within a reasonably proximate time, some or all of the assets which his father has allegedly made over to him. He has not even enquired of his brothers whether they would be prepared to allow him to have access to the money to which he claims he has a present right.
Case: Re Vassis; Ex parte Leung (1986) 9 FCR 518
Outcome: cited
failure of a secured creditor correctly to state in a creditors' petition that it is secured at all can be cured by the Court permitting an amendment under s 33(1)(b) of the Bankruptcy Act 1966 (Cth): Re Florance; Ex parte Turimetta Properties Pty Limited (No 2) (1980) 39 FLR 400 at 402 per Lockhart J; In Re A Debtor; Ex parte Okill v The Debtor; Okill v Gething [1977] 1 WLR 1308 at 1314C-D per Goulding and Fox JJ; Re Finn; Ex parte Amoco Australia Limited (1982) 41 ALR 487 at 495 per Fitzgerald J. A secured creditor who does not value its security appropriately can also have the petition amended to regularize the position, provided that what is valued is its estimate made in good faith of the value of the security: Bryant v Commonwealth Bank of Australia (unreported FCAFC 24 November 1995 per Beaumont, Whitlam and Moore JJ at 12; see also Re O'Leary; Ex parte Bayne (1985) 61 ALR 674 at 678, 682-683 per Sheppard J applying Lockhart J's decision in Re Wiggins; Ex parte Credit Assistance Pty Ltd (1979) 30 ALR 443 at 446; 36 FLR 182 at 185; see too Re Vassis; Ex parte Leung (1986) 9 FCR 518 at 529-530 per Burchett J; Re Kwiatek; Ex parte Big J Ltd v Pattison (1989) 21 FCR 374 at 383 per Northrop J; see too MacDonald v Official Trustee in Bankruptcy [2001] FCA 140 ; (2001) 107 FCR 72 at 78-79 [27] - [28] ). In the latter case the Full Court said: omission by a petitioning secured creditor from the petition of the matters required to be stated by s 44(3) and (4) is, in our opinion, no less entitled to be called a fundamental defect in the petition as the failure by a petitioner to fully describe the act of bankruptcy referred to in s 40(1)(g) in his petition.'
Case: Re Wiggins; Ex parte Credit Assistance Pty Ltd (1979) 30 ALR 443; 36 FLR 182
Outcome: cited
failure of a secured creditor correctly to state in a creditors' petition that it is secured at all can be cured by the Court permitting an amendment under s 33(1)(b) of the Bankruptcy Act 1966 (Cth): Re Florance; Ex parte Turimetta Properties Pty Limited (No 2) (1980) 39 FLR 400 at 402 per Lockhart J; In Re A Debtor; Ex parte Okill v The Debtor; Okill v Gething [1977] 1 WLR 1308 at 1314C-D per Goulding and Fox JJ; Re Finn; Ex parte Amoco Australia Limited (1982) 41 ALR 487 at 495 per Fitzgerald J. A secured creditor who does not value its security appropriately can also have the petition amended to regularize the position, provided that what is valued is its estimate made in good faith of the value of the security: Bryant v Commonwealth Bank of Australia (unreported FCAFC 24 November 1995 per Beaumont, Whitlam and Moore JJ at 12; see also Re O'Leary; Ex parte Bayne (1985) 61 ALR 674 at 678, 682-683 per Sheppard J applying Lockhart J's decision in Re Wiggins; Ex parte Credit Assistance Pty Ltd (1979) 30 ALR 443 at 446; 36 FLR 182 at 185; see too Re Vassis; Ex parte Leung (1986) 9 FCR 518 at 529-530 per Burchett J; Re Kwiatek; Ex parte Big J Ltd v Pattison (1989) 21 FCR 374 at 383 per Northrop J; see too MacDonald v Official Trustee in Bankruptcy [2001] FCA 140 ; (2001) 107 FCR 72 at 78-79 [27] - [28] ). In the latter case the Full Court said: omission by a petitioning secured creditor from the petition of the matters required to be stated by s 44(3) and (4) is, in our opinion, no less entitled to be called a fundamental defect in the petition as the failure by a petitioner to fully describe the act of bankruptcy referred to in s 40(1)(g) in his petition.'
Case: Booth v Bosworth [2001] FCA 1453 ; (2001) 114 FCR 39
Outcome: referred to
In Booth v Bosworth [2001] FCA 1453 ; (2001) 114 FCR 39 at [115] , Branson J states: 'In weighing the factors which support an exercise of the Court's discretion in favour of the grant of an injunction under s 475(2) of the Act against those factors which tell against the grant of such an injunction, it seems to me that it would be a rare case in which a Court could be satisfied that the financial interests of private individuals, or even the interests of a local community, should prevail over interests recognised by the international community and the Parliament of Australia as being of international importance.'
Case: Coote v Forestry Tasmania [2006] HCA 26 ; (2006) 227 ALR 481
Outcome: referred to
Further, it is not to the point that the actual forestry operations will be undertaken by Gunns, or sub-contractors to Gunns, when s 8(1)(c)(i) of the Forestry Act vests in Forestry Tasmania exclusive management and control of all State forest. See also Coote v Forestry Tasmania [2006] HCA 26 ; (2006) 227 ALR 481 at 487, per Gummow J. 55 The Commonwealth, which was granted leave to intervene with respect to issue two, did not support the submission of Forestry Tasmania on the application of s 524(2) of the EPBC Act. 56 Gunns completed harvesting in coupe 17E on 16 August 2005. Mr Alec Dean, the then supervising officer from Forestry Tasmania, signed the final Forest Harvesting Monitoring Report on 25 August 2005. There is a current certified Forest Practices Plan for coupe 19D. It estimates that harvesting would have been completed by 30 June 2006. This proceeding ensured that did not happen. The Forest Practices Plan for coupe 19D expires on 31 August 2008. Implementation of that Plan will see the completion of roading and the harvesting of trees in the coupe. Roading is intended to be carried out by Gunns and harvesting by a contractor engaged by Gunns.
Case: Minister for Immigration and Ethnic Affairs v Ah Hin Teoh [1995] HCA 20 ; (1995) 183 CLR 273
Outcome: applied
The requirement in s 18(3) of the EPBC Act that an action not occur which is likely to have a significant impact on a listed threatened species must be seen in the context of an Act and Conventions which underlie the promotion of recovery of threatened species. Similarly, the exemption for RFA forestry operations in s 38 of the EPBC Act must be seen, in context, as providing an exception only if an alternative means of promoting the recovery of a species is achieved by a Regional Forest Agreement. Such an approach is consistent with the High Court's view of the influence of Conventions as an aid in interpreting domestic legislation designed to give effect to them; see Minister for Immigration and Ethnic Affairs v Ah Hin Teoh [1995] HCA 20 ; (1995) 183 CLR 273 at 287 where Mason CJ and Deane J said: 'It is accepted that a statute is to be interpreted and applied, as far as its language permits, so that it is in conformity and not in conflict with the established rules of international law.' That proposition, their Honours said, required courts to: '...favour a construction, as far as the language of the legislation permits, that is in conformity and not in conflict with Australia's international obligations.' I have adopted that approach in this judgment. I certify that the preceding three hundred and one (301) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall. Associate: Dated: 19 December 2006 Counsel for the applicant: Ms D Mortimer SC and Mr P Tree SC with Mr T Mitchell and Ms C Symons Solicitors for the applicant: FitzGerald and Browne Lawyers Counsel for the respondent: Mr D Gunson SC with Mr A Abbott and Mr C Gunson Solicitor for the respondent: Mr J McDonald Counsel for the first intervener: Mr N O'Bryan SC with Mr A Broadfoot Solicitors for the first intervener: Minter Ellison Counsel for the second intervener: Mr P Turner with Mr M Dixon, Ms C Buxton and Ms K Ganley Solicitors for the second intervener: Office of the Director of Public Prosecutions Dates of Hearing: 5-9, 12-16 December 2005, 6-10, 14,15 February, 1-5, 8-12, 15-19 May, 29, 30 August 2006 Date of Judgment: 19 December 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1729.html
Case: Re Ditfort; ex parte Deputy Commissioner of Taxation (1988) 19 FCR 347
Outcome: distinguished
The State of Tasmania refers the Court to Re Ditfort; ex parte Deputy Commissioner of Taxation (1988) 19 FCR 347 (' Ditfort ') where Gummow J said at 370 there would be no 'matter' before the Court if it was required to consider 'undertakings and obligations depending entirely on political sanctions'. His Honour described such 'non-justiciable issues' as including 'agreements and understandings between governments within the federation'. It is noteworthy that in Ditfort , Gummow J held, at 373, that the non-justiciable principle did not apply because the Court had jurisdiction to deal with the matter in question and the issue of inter-governmental relations arose in the course of dealing with issues which were elements of the matter within jurisdiction. 236 I am not required to consider undertakings and obligations which depend entirely on political sanctions. I am required to consider whether s 38(1) of the EPBC Act applies and to perform that task properly I am required to consider whether Forestry Tasmania's forestry operations in Wielangta are conducted 'in accordance with' the RFA. If, in completing that task, this Court finds the RFA is not being applied to Forestry Tasmania's forestry operations in Wielangta, that does not mean the Court must cease dealing with the application, which is unquestionably within jurisdiction. 237 For the above reasons, I reject the contention that the Court cannot consider whether Forestry Tasmania's forestry operations in the Wielangta area will, or have been, carried out in accordance with the RFA by reference to cl 68. It is wrong to say that issue is non-justiciable. It is an issue on an amended agreed list of issues that the parties filed in the proceeding. It is an issue central to the proceeding, in that it must be answered in order to determine whether the s 38 exemption applies under the EPBC Act. I answer it below.
Case: Save the Ridge Inc v Commonwealth and Another [2005] FCAFC 203 ; (2005) 147 FCR 97
Outcome: distinguished
As Black CJ and Moore J said in Save the Ridge Inc v Commonwealth and Another [2005] FCAFC 203 ; (2005) 147 FCR 97 (' Save the Ridge '), 105 at [19]: 'The apparent purpose of s 524 is to take the process of authorisation by governments or government agencies outside the purview of the EPBC Act by excluding certain decisions by those bodies from the concept of relevant "action".' 49 Forestry Tasmania is an agency of the State of Tasmania. It submits that as such it has granted to Gunns Limited ('Gunns') a 'governmental authorisation' under s 524(2) to conduct forestry operations in coupes 17E and 19D. It relies on Save the Ridge where a Full Court of this Court held that Ministerial approval and gazettal of changes to the National Capital Plan of the Australian Capital Territory, necessary to permit the construction of a road, was a decision of a Commonwealth agency to grant a governmental authorisation to the Australian Capital Territory. Forestry Tasmania contends that an authorisation, when issued by a government body, will be a 'governmental authorisation when issued by the governmental body in its capacity as such' under s 524(2) of the EPBC Act. 50 Forestry Tasmania says the Forest Practices Plans for coupes 17E and 19D constitute the formal documents by which it authorised Gunns to conduct forestry operations. It submits that on this ground alone the application before the Court must fail. 51 The applicant contends that the submission of Forestry Tasmania referred to above depends on a characterisation of Forestry Tasmania's actions ('that is, logging, roading and the like') not as the physical activities involved, but as a product of a process where it authorises such activities to occur. 53 On this aspect of the proceeding, I prefer the applicant's submission. Save the Ridge is distinguishable because the attack in that case was on the steps taken to amend a plan which would authorise the construction of a freeway extension. There was no attack on the construction of the freeway extension. Here, there is no attack on a Forest Practices Plan, but on the work which is planned to take place under a Forest Practices Plan.
Case: South Australia v The Commonwealth [1962] HCA 10 ; (1961-62) 108 CLR 130
Outcome: distinguished
Forestry Tasmania (in this regard supported by the State of Tasmania) submits that compliance by the State with its obligations under cl 68 of the RFA is a non-justiciable issue. In that regard, it refers to and relies on South Australia v The Commonwealth [1962] HCA 10 ; (1961-62) 108 CLR 130. 225 Alternatively, Forestry Tasmania submits that forestry operations are 'in accordance with the RFA' if they fall 'within the parameters of the RFA and [do] not conflict with the terms of the RFA, considered broadly and not by weighing its words as if they are diamonds'. 226 Further, Forestry Tasmania submits the protection contemplated by cl 68 of the RFA is 'systemic species protection rather than some guarantee of some right to survival of some individual or individuals forming part of a threatened species...with a view to ensuring survival of [that] species in the long-term'. 234 This proceeding is distinguishable from South Australia v The Commonwealth where a party to an inter-governmental agreement sought to enforce it against the other party. The relevant obligation sought to be enforced did not contain a precise time for its enforcement. The High Court considered the matter to require political rather than judicial resolution.
Case: Universal Music Australia Pty Ltd v Sharman License Holdings Ltd (2005) 220 ALR 1
Outcome: cited
Where the evidence of Mr Meggs differs from that of Dr McQuillan and Dr Michaels, I prefer the evidence of Dr McQuillan and Dr Michaels. Under cross-examination, Mr Meggs was frequently evasive and appeared to me to be much more of an advocate for the cause of Forestry Tasmania than an independent expert. I accept the applicant's submission that Mr Meggs was a 'partisan polemic' and a 'so-called independent expert'; see Universal Music Australia Pty Ltd v Sharman License Holdings Ltd (2005) 220 ALR 1 at [26], per Wilcox J. 118 The worst aspect of Mr Meggs' lack of independence was his preparedness to alter his affidavit evidence based on 'suggestions' by senior employees of Forestry Tasmania. 119 Mr Meggs gave evidence that his affidavit received 'peer review' from the following people: &#8226; Dr Sarah Munks from the Forest Practices Authority; &#8226; Dr Stephen Read, the Chief Scientist of the Division of Forest Research and Development from Forestry Tasmania; &#8226; Dr Hans Drielsma, the then General Manager of Forestry Management for Forestry Tasmania; &#8226; Mr John Hickey, the Manager of the Planning Branch (formerly the Principal Research Officer of the Native Forests Branch) of Forestry Tasmania; and &#8226; Dr Marie Yee from Forestry Tasmania.
Case: ACCC v Australian Safeway Stores Pty Ltd (1998) 81 FCR 526 
Outcome: cited
dominant purpose for which a document is brought into existence must be determined at the time of its production ( Federal Commissioner of Taxation v Pratt Holdings Pty Ltd [2005] FCA 1247 ; 60 ATR 466 at 478) having regard to the evidence, the nature of the documents and the parties' submissions (supra, at 477). The purpose will ordinarily be that of the maker, although this will not always be the case ( Mitsubishi Electric Australia Pty Ltd at 338; Grant v Downs at 677), and evidence of intention of the document's maker, or the person who authorised or procured it, is not conclusive of purpose ( ACCC v Australian Safeway Stores Pty Ltd (1998) 81 FCR 526 at 545).