mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: R v O'Sullivan; Ex parte Clarke [1967] WAR 168
Outcome: referred to
In R v O'Sullivan; Ex parte Clarke [1967] WAR 168, the Full Court of the Supreme Court of Western Australia found that a delay in filing an application for a writ of certiorari, issued more than three months after the Court's decision, was regarded as substantial and ' an important factor in the exercise of the court's decision to refuse relief... ' In Ansell v Wells and Others (1982) 63 FLR 127 Lockhart J at page 156 said '[d]elay, coupled with prejudice to the defendant or a third party, may debar a plaintiff from discretionary relief. ' In Re David Smith and The West Australian Development Corporation; Ex parte Rundle and Others (1992) 5 WAR 295 Malcolm CJ, delivering the judgment of the Full Court observed in relation to the time limit prescribed by the Rules of the Supreme Court of Western Australia: 'The time limit in O 65, r 11(1) of six months has its justification in the need to act promptly in relation to proceedings to quash the decision of an inferior court or tribunal. Great inconvenience could be caused by permitting the decision to stand and allowing people to act on the assumption that the decision was valid. The six months time limit was introduced in England in 1740 by the statute 13 GeoII, c 18 s 5 which provided that no certiorari should issue for the removal of orders made by justices of the peace after six months. The court had no discretion to extend time: see R v Anglesea Justices (1846) 10 Jur 817. The 1740 statute was repealed by the Statute Law Revision Act 1888 . The court has an express power to extend the time under the rule. In my opinion it is, at the least, extremely doubtful whether the rule applies to decisions of bodies or persons other than inferior courts or statutory tribunals. If it does not, the rule would not apply to a decision such as that made by the minister in the present case. Even if the rule does not apply, however, the nature of the remedy of certiorari is such that the court would require it to be sought promptly.'
Case: Ralkon Agricultural Co Pty Ltd v Aboriginal Development Commission (1982) 43 ALR 535
Outcome: referred to
PCR asks the Court to exercise its discretion to grant an extension of time. In exercising its discretion, the Court must consider interests beyond those of an applicant. Whilst s 11 of the ADJR Act does not specifically impose a burden of proof upon an applicant for the extension of time, an applicant is required to show why ' in all the circumstances, the extension of time should be granted ': see Lucic v Nolan and Others (1982) 45 ALR 411 at 416. Further, the ' prescribed period ' of 28 days is not to be ignored: see Ralkon Agricultural Co Pty Ltd v Aboriginal Development Commission (1982) 43 ALR 535 at 550.
Case: Re David Smith and The West Australian Development Corporation; Ex parte Rundle and Others (1992) 5 WAR 295
Outcome: cited
In R v O'Sullivan; Ex parte Clarke [1967] WAR 168, the Full Court of the Supreme Court of Western Australia found that a delay in filing an application for a writ of certiorari, issued more than three months after the Court's decision, was regarded as substantial and ' an important factor in the exercise of the court's decision to refuse relief... ' In Ansell v Wells and Others (1982) 63 FLR 127 Lockhart J at page 156 said '[d]elay, coupled with prejudice to the defendant or a third party, may debar a plaintiff from discretionary relief. ' In Re David Smith and The West Australian Development Corporation; Ex parte Rundle and Others (1992) 5 WAR 295 Malcolm CJ, delivering the judgment of the Full Court observed in relation to the time limit prescribed by the Rules of the Supreme Court of Western Australia: 'The time limit in O 65, r 11(1) of six months has its justification in the need to act promptly in relation to proceedings to quash the decision of an inferior court or tribunal. Great inconvenience could be caused by permitting the decision to stand and allowing people to act on the assumption that the decision was valid. The six months time limit was introduced in England in 1740 by the statute 13 GeoII, c 18 s 5 which provided that no certiorari should issue for the removal of orders made by justices of the peace after six months. The court had no discretion to extend time: see R v Anglesea Justices (1846) 10 Jur 817. The 1740 statute was repealed by the Statute Law Revision Act 1888 . The court has an express power to extend the time under the rule. In my opinion it is, at the least, extremely doubtful whether the rule applies to decisions of bodies or persons other than inferior courts or statutory tribunals. If it does not, the rule would not apply to a decision such as that made by the minister in the present case. Even if the rule does not apply, however, the nature of the remedy of certiorari is such that the court would require it to be sought promptly.'
Case: Re Refugee Review Tribunal and Another; Ex parte Aala [2000] HCA 57 ; [2000] 204 CLR 82
Outcome: cited
In Re Refugee Review Tribunal and Another; Ex parte Aala [2000] HCA 57 ; [2000] 204 CLR 82 Gaudron and Gummow JJ referred to circumstances which might prevent the Court exercising its discretion in favour of granting prerogative relief and at [57] quoted Lord Denning in F Hoffmann-La Roche &amp; Co AG v Secretary of State for Trade and Industry (1975) AC 295 at 320 (CA) where His Lordship said of a plaintiff who delays commencing proceedings: 'He may be debarred from relief if he has acquiesced in the invalidity or has waived it. If he does not come with due diligence and ask for it to be set aside, he may be sent away with nothing (145). If his conduct has been disgraceful and he has in fact suffered no injustice, he may be refused relief (146).'
Case: Silkman v Kendall [1982] 1 NSWLR 133
Outcome: referred to
PCR submits that community needs means ' the reasonable demands or expectations of the public '; see Silkman v Kendall [1982] 1 NSWLR 133 at 140; Toohey v Taylor [1983] 1 NSWLR 743 at 748-749. By analogy, it is submitted that such principle applies to the question of needs as contained in s 84(2)(a) of the Act.
Case: Telstra Corp Ltd v Hornsby Shire Council (2006) 146 LGERA 10
Outcome: referred to
PCR submits that the assertion of the 2080 letters in support by GCB was in reality no more than speculation, and that what was required was evidence which logically showed the existence of the facts relevant to the issue to be determined: see Telstra Corp Ltd v Hornsby Shire Council (2006) 146 LGERA 10. 64 PCR submits that ABA's findings were based upon the number of members of GCB and that at the relevant time GCB did not have 1078 members as claimed. In fact, approximately 1000 of those members belonged to NCB. Accordingly, PCR claims that there was no probative value in the finding by the ABA relating to the number of members of GCB.
Case: The Queen v Australian Stevedoring Industry Board and Another: Ex parte Melbourne Stevedoring Company Proprietary Limited [1953] HCA 22 ; (1953) 88 CLR 100
Outcome: referred to
If the Court is satisfied that the ABA has misdirected itself in law or has failed to consider matters that it was required to consider, or taken irrelevant matters into consideration, its decision will have miscarried: see Buck v Bavone [1976] HCA 24 ; (1976) 135 CLR 110 (at 118-119 per Gibbs J). However, the failure of a decision maker to take into account an insignificant matter may not warrant a Court setting aside the decision: see Minister for Aboriginal Affairs and Anor v Peko-Wallsend Limited and Ors at 40. If the Court should conclude that there is inadequate factual material to support a finding by the ABA, it could lead to the inference that the Tribunal has applied a wrong test or has not otherwise satisfied the requisite matters which it was obliged to consider under s 84(2) of the Act: see The Queen v Australian Stevedoring Industry Board and Another: Ex parte Melbourne Stevedoring Company Proprietary Limited [1953] HCA 22 ; (1953) 88 CLR 100 at 120. In Minister for Immigration and Multicultural Affairs v Rajamanikkam and Another [2002] HCA 32 ; [2002] 210 CLR 222, Gaudron and McHugh JJ said at page 241: 'Whether a decision would or would not have been made without a particular factual finding depends on indications to that effect in the decision, the reasons for decision or the decision making process. And unless it is possible to say on a proper analysis of the decision, the reasons for decision or the decision making process that, had a particular finding not been made, the decision in question would not have been reached, it is, in our view, impossible to say that the decision was based on that finding.'
Case: The Queen v The Australian Broadcasting Tribunal and Others; Ex parte Hardiman and Others [1980] HCA 13 ; (1980) 144 CLR 13
Outcome: referred to
The interests of the ABA are to be considered also. Consistent with the principles referred to in The Queen v The Australian Broadcasting Tribunal and Others; Ex parte Hardiman and Others [1980] HCA 13 ; (1980) 144 CLR 13, the ABA has adopted a neutral position in these proceedings. Nevertheless, in relation to the application for the extension of time it has raised matters relating to the public interest which the Court will consider. 32 The ABA refers to the statutory objects of the Act as contained in s 3 thereof. In summary, those objects included the provision of a regulatory environment 'that will facilitate the development of a broadcasting industry in Australia that is efficient, competitive and responsive to audience needs...'
Case: Toohey v Taylor [1983] 1 NSWLR 743
Outcome: referred to
PCR submits that community needs means ' the reasonable demands or expectations of the public '; see Silkman v Kendall [1982] 1 NSWLR 133 at 140; Toohey v Taylor [1983] 1 NSWLR 743 at 748-749. By analogy, it is submitted that such principle applies to the question of needs as contained in s 84(2)(a) of the Act.
Case: Wedesweiller and Others v Cole and Others (1983) 47 ALR 528
Outcome: referred to
The merits of the substantive application are to be taken into consideration (see Hunter Valley Developments Pty Ltd at 349). In these proceedings, the Court considers that PCR's claims are arguable. However, PCR's application must be considered with reference to all parties who might be affected and the question of prejudice being occasioned to GCB is a matter for the Court's consideration: see Hunter Valley Developments Pty Ltd at 349; Doyle v Chief of General Staff (1982) 42 ALR 283 at 287; Lovett v Le Gall (1975) 10 SASR 479 at 485; Wedesweiller and Others v Cole and Others (1983) 47 ALR 528 at 533-534.
Case: Wyong-Gosford Progressive Community Radio Inc v Australian Broadcasting Authority and Another [2003] FCA 33 ; [2003] 125 FCR 560
Outcome: referred to
On 23 December 2002 the licence was awarded by the ABA to GCB. PCR promptly challenged the decision of the ABA to grant the licence to GCB and brought proceedings under the ADJR Act in this Court. On 31 January 2003 Wilcox J determined that the award of the licence to GCB resulted from denial of natural justice and set aside the decision of the ABA: see Wyong-Gosford Progressive Community Radio Inc v Australian Broadcasting Authority and Another [2003] FCA 33 ; [2003] 125 FCR 560. 8 On 19 March 2004 the ABA called for applications for the licence in respect of the licence area by advertisement published in the Central Coast Express, and by 16 April 2004 the ABA had received applications from three applicants, namely PCR, GCB and Radio Yesteryear. 9 On 6 May 2004 copies of each application was made available for public inspection on the ABA website and in hard copy at Gosford City Public Library. On 19 April 2004 the ABA wrote to each of the licence applicants advising them of the other applications and informing them that the general public was entitled to make submissions on the applications until 14 May 2004. The ABA duly received submissions and placed the submissions on its website for public inspection.
Case: Brooklands Selangor Holdings Ltd v Inland Revenue Commissioners [1970] 1 WLR 429
Outcome: cited
Buckley J's explanation of the meaning of 'reconstruction' was adopted by Pennycuick J in Brooklands Selangor Holdings Ltd v Inland Revenue Commissioners [1970] 1 WLR 429 at 445, and by Plowman J in Baytrust Holdings Ltd v Inland Revenue Commissioners [1971] 1 WLR 1333 at 1352-3. Both of these cases concerned the construction of s 55 of the Finance Act 1927 (UK).
Case: Baytrust Holdings Ltd v Inland Revenue Commissioners [1971] 1 WLR 1333
Outcome: cited
Buckley J's explanation of the meaning of 'reconstruction' was adopted by Pennycuick J in Brooklands Selangor Holdings Ltd v Inland Revenue Commissioners [1970] 1 WLR 429 at 445, and by Plowman J in Baytrust Holdings Ltd v Inland Revenue Commissioners [1971] 1 WLR 1333 at 1352-3. Both of these cases concerned the construction of s 55 of the Finance Act 1927 (UK).
Case: Citizens and Graziers' Life Assurance Co Ltd v Commonwealth Life (Amalgamated) Assurances Ltd [1934] HCA 22 ; (1934) 51 CLR 422
Outcome: discussed
In Citizens and Graziers' Life Assurance Co Ltd v Commonwealth Life (Amalgamated) Assurances Ltd [1934] HCA 22 ; (1934) 51 CLR 422, the High Court had to consider whether particular circumstances constituted an 'amalgamation' of two companies. Dixon J discussed the concept of the amalgamation of two companies at 457-8. His Honour said: 'The union of shareholders, which amalgamation involves, is, of course, not concerned with the members of the combining corporations as persons. It is the reorganization of share capital that matters. The replacement of two separate systems of share capital by one appears to be required before a union of two companies limited by shares can justly be called an amalgamation of the companies. In the process of reorganization, classes or divisions of shares, or amount of share capital, in one or other or both of the old companies may find no representation in the one system of capital which emerges. But the substantial result must be to reduce for practical purposes two or more organizations of capital to one, and two or more incorporated companies to one. The amalgamation to which the clause in the memorandum refers is not a mere combination of businesses separately conducted, but an amalgamation of companies. There is no context to enlarge the meaning of the expression. To accomplish such an amalgamation, it seems necessary, either to consolidate the constituent elements of the old companies into a new one, or to merge in one of the old companies the constituent elements of the other. Possibly a transaction may be an amalgamation although the corporate existence of the consolidating companies, or of the merged company, may be continued for some special and definite purpose. But the continuance of two corporations under separate control, organized with their separate systems of share capital and capable of independent activities, appears to me inconsistent with an amalgamation of more than their existing enterprises.' 76 I agree with Mr Oakes that a restrictive interpretation should not be placed on either the term 'reconstruction' or the term 'amalgamation'. I also accept his submission that the approach should be simply to inquire whether the circumstances of a particular case fall within one or the other or both of the words, without first attempting to delineate their respective boundaries of meaning.
Case: Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59 ; (1999) 200 CLR 1
Outcome: discussed
In Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59 ; (1999) 200 CLR 1, the High Court held unanimously that the word 'liabilities' in s 14 of the Stevedoring Industry Acts (Termination) Act 1977 (Cth), which provided for a vesting in the Stevedoring Industry Finance Committee of liabilities of the Australian Stevedoring Industry Authority, operated to vest in the Committee the liability of the Authority in respect of a breach of its duty of care to safeguard wharf labourers against exposure to asbestos fibres, even though the injury was suffered after the vesting under s 14 took place. Gleeson CJ observed that depending on the context, 'liability' can include contingent or potential liability (his Honour cited Walters v Babergh District Council (1983) 82 LGR (Eng) 235 (QBD)). The Chief Justice noted (at 14) that the legislation abolished the Authority which no longer had the capacity to meet any claims upon it, and said that there was no good reason to distinguish between complete and inchoate causes of action, where the Authority had committed a breach of a legal duty.
Case: Housing Guarantee Fund Ltd v Yusef [1991] 2 VR 17
Outcome: distinguished
The second issue to which I referred, can best be considered by reference to Housing Guarantee Fund Ltd v Yusef [1991] 2 VR 17 (' HGFL v Yusef ').
Case: In re Landau (a Bankrupt) [1998] Ch 223
Outcome: cited
Support for the view expressed in the preceding paragraph is found in a line of authority concerning contractual promises not to assign real or personal property without consent. It is held that such promises do not extend to assignments effected by operation of law upon the making of an order of the court following an adjudication, even if it was the person who promised not to assign who applied for the order: In re Riggs; ex parte Lovell [1901] 2 KB 16; Marsh v Gilbert [1980] 2 EGLR 44; In re Landau (a Bankrupt) [1998] Ch 223; Krasner v Dennison [2001] Ch 76.
Case: In re Riggs; ex parte Lovell [1901] 2 KB 16
Outcome: cited
Support for the view expressed in the preceding paragraph is found in a line of authority concerning contractual promises not to assign real or personal property without consent. It is held that such promises do not extend to assignments effected by operation of law upon the making of an order of the court following an adjudication, even if it was the person who promised not to assign who applied for the order: In re Riggs; ex parte Lovell [1901] 2 KB 16; Marsh v Gilbert [1980] 2 EGLR 44; In re Landau (a Bankrupt) [1998] Ch 223; Krasner v Dennison [2001] Ch 76.
Case: In re Sandwell Park Colliery Co Ltd [1914] 1 Ch 589
Outcome: followed
It is settled that in such circumstances, the Scheme is a members' scheme only: In re Sandwell Park Colliery Co Ltd [1914] 1 Ch 589; In re Star Tea Co Ltd [1930] WN 4; Re Clydesdale Bank Ltd [1950] SC 30; Re AGL Sydney Ltd (1994) 13 ACSR 597; Royal Victorian Institute for the Blind Ltd v RBS.RVIB.VAF Ltd (2004) 206 ALR 581 (' RVIB '); SGIC Insurance Ltd v Insurance Australia Ltd (2004) 51 ACSR 470. The position of creditors is appropriately addressed on the second court hearing as a consideration relevant to the discretion whether to approve the Scheme.
Case: In re Star Tea Co Ltd [1930] WN 4
Outcome: cited
It is settled that in such circumstances, the Scheme is a members' scheme only: In re Sandwell Park Colliery Co Ltd [1914] 1 Ch 589; In re Star Tea Co Ltd [1930] WN 4; Re Clydesdale Bank Ltd [1950] SC 30; Re AGL Sydney Ltd (1994) 13 ACSR 597; Royal Victorian Institute for the Blind Ltd v RBS.RVIB.VAF Ltd (2004) 206 ALR 581 (' RVIB '); SGIC Insurance Ltd v Insurance Australia Ltd (2004) 51 ACSR 470. The position of creditors is appropriately addressed on the second court hearing as a consideration relevant to the discretion whether to approve the Scheme.
Case: Krasner v Dennison [2001] Ch 76
Outcome: cited
Support for the view expressed in the preceding paragraph is found in a line of authority concerning contractual promises not to assign real or personal property without consent. It is held that such promises do not extend to assignments effected by operation of law upon the making of an order of the court following an adjudication, even if it was the person who promised not to assign who applied for the order: In re Riggs; ex parte Lovell [1901] 2 KB 16; Marsh v Gilbert [1980] 2 EGLR 44; In re Landau (a Bankrupt) [1998] Ch 223; Krasner v Dennison [2001] Ch 76.
Case: Marsh v Gilbert [1980] 2 EGLR 44
Outcome: cited
Support for the view expressed in the preceding paragraph is found in a line of authority concerning contractual promises not to assign real or personal property without consent. It is held that such promises do not extend to assignments effected by operation of law upon the making of an order of the court following an adjudication, even if it was the person who promised not to assign who applied for the order: In re Riggs; ex parte Lovell [1901] 2 KB 16; Marsh v Gilbert [1980] 2 EGLR 44; In re Landau (a Bankrupt) [1998] Ch 223; Krasner v Dennison [2001] Ch 76.
Case: Orica Ltd v CGU Insurance Ltd [2003] NSWCA 331 ; (2003) 59 NSWLR 14
Outcome: cited
If a claimant should wish to sue Stork ICM, and it is contended, for example, that Zurich was the insurer at the relevant time, the claimant will be entitled to apply under s 601AH(2) of the Act for the Court to order that ASIC reinstate the registration of Stork ICM. The Court would make such an order if it was satisfied that it was just to do so. It is true that a claimant in such a case would suffer the disadvantage of having to make such an application, but it seems to me that the likelihood of this eventuating is small, and that it would be very likely indeed that the order would be made, and probably on the basis that Stork FSA or Stork NV or, perhaps after its reinstatement, Stork ICM, pay the potential claimants' costs of the application since its purpose would be to allow the dispute as to the identity of Stork ICM's insurer at the relevant time to be resolved. (I agree, incidentally, with senior counsel for ASIC, that s 601AG would be of doubtful utility, because that section would operate only in a case where the facts showed that Stork ICM had a liability to the claimant immediately before the deregistration; see Orica Ltd v CGU Insurance Ltd [2003] NSWCA 331 ; (2003) 59 NSWLR 14.) 124 Subject to an amendment in the definition of 'Future Proceedings' in the Scheme, the Scheme should be approved, with an alteration so as to exclude, pending any further order under s 413, any Excepted Liability, and any right of indemnity under an Excepted Policy, in each case as described above. I certify that the preceding one-hundred and twenty-four (124) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren. Associate: Dated: 16 February 2007 Counsel for Plaintiff and Defendant:: Mr M B Oakes SC Solicitors for the Plaintiff and Defendant: McCullough Robertson Counsel for Australian Securities and Investments Commission, appearing amici curiae : Mr P Whitford SC and Ms V McWilliam Counsel appearing amicus curiae in the interests of potential claimants: Ms L McCallum SC Dates of Hearing: 14, 20, 28 September; 20 October; 7, 15, 24 November; 7, 14 December 2006 Date of Judgment: 14 December 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1849.html
Case: Re Clydesdale Bank Ltd [1950] SC 30
Outcome: followed
It is settled that in such circumstances, the Scheme is a members' scheme only: In re Sandwell Park Colliery Co Ltd [1914] 1 Ch 589; In re Star Tea Co Ltd [1930] WN 4; Re Clydesdale Bank Ltd [1950] SC 30; Re AGL Sydney Ltd (1994) 13 ACSR 597; Royal Victorian Institute for the Blind Ltd v RBS.RVIB.VAF Ltd (2004) 206 ALR 581 (' RVIB '); SGIC Insurance Ltd v Insurance Australia Ltd (2004) 51 ACSR 470. The position of creditors is appropriately addressed on the second court hearing as a consideration relevant to the discretion whether to approve the Scheme.
Case: Re AGL Sydney Ltd (1994) 13 ACSR 597
Outcome: followed
It is settled that in such circumstances, the Scheme is a members' scheme only: In re Sandwell Park Colliery Co Ltd [1914] 1 Ch 589; In re Star Tea Co Ltd [1930] WN 4; Re Clydesdale Bank Ltd [1950] SC 30; Re AGL Sydney Ltd (1994) 13 ACSR 597; Royal Victorian Institute for the Blind Ltd v RBS.RVIB.VAF Ltd (2004) 206 ALR 581 (' RVIB '); SGIC Insurance Ltd v Insurance Australia Ltd (2004) 51 ACSR 470. The position of creditors is appropriately addressed on the second court hearing as a consideration relevant to the discretion whether to approve the Scheme.