mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Graywinter Properties Pty Ltd v Gas &amp; Fuel Corporation Superannuation Fund (1996) 14 ACLC 1703
Outcome: referred to
A review of a registrar's decision under s 35A of the Federal Court of Australia Act 1976 (Cth) is by way of a hearing de novo in the sense that it is a hearing at which the parties may adduce fresh evidence as of right: see Mazukov v University of Tasmania [2004] FCAFC 159 at [24] per Kiefel, Weinberg and Stone JJ and Cottrell v Wilcox [2001] FCA 866 at [8] per Sundberg, Emmett and Finkelstein JJ. Absent any limitation deriving from another source, G &amp; J Gears is entitled to adduce additional evidence on review of the registrar's decision. Apart from the more fundamental objection to the review discussed above, this was not, however, the only difficulty that it faced with respect to the evidence that it wished to adduce on the review. There was a further limitation consequential upon s 459G. That is, the authorities establish that the recipient of a statutory demand cannot apply to have the demand set aside on a ground not raised within the 21 days allowed in s 459G: see Energy Equity Corporation Ltd v Sinedie Pty Ltd [2001] WASCA 419 at [29] per Wallwork J, with whom Steytler J and Olsson AUJ agreed. Under the regime established by the Corporations Act , the Court has no discretion to extend time: compare David Grant &amp; Co Pty Ltd v Westpac Banking Corporation [1995] HCA 43 ; (1995) 184 CLR 265 (" David Grant ") at 277-278 per Gummow J. Brisbane South Regional Health Authority v Taylor [1996] HCA 25 ; (1996) 186 CLR 541, which was relied on by G &amp; J Gears, is not authority to the contrary since it concerned a relevantly different statutory scheme that expressly conferred discretion to enlarge time. Thus, even if a further extension of time had been obtained, it would not have been open to G &amp; J Gears to rely on any claim other than its trademark infringement claim. Providing its initial affidavit satisfied s 459G(3) , it would have been open to G &amp; J Gears to rely on evidence additional to that filed within the 21 day period to support this ground, being a ground that was raised within this period: see Graywinter Properties Pty Ltd v Gas &amp; Fuel Corporation Superannuation Fund (1996) 14 ACLC 1703 at 1709 per Sundberg J, applied in Meadowfield Pty Ltd v Gold Coast Holdings Pty Ltd (in liq) [2001] WASCA 360.
Case: Meadowfield Pty Ltd v Gold Coast Holdings Pty Ltd (in liq) [2001] WASCA 360
Outcome: referred to
A review of a registrar's decision under s 35A of the Federal Court of Australia Act 1976 (Cth) is by way of a hearing de novo in the sense that it is a hearing at which the parties may adduce fresh evidence as of right: see Mazukov v University of Tasmania [2004] FCAFC 159 at [24] per Kiefel, Weinberg and Stone JJ and Cottrell v Wilcox [2001] FCA 866 at [8] per Sundberg, Emmett and Finkelstein JJ. Absent any limitation deriving from another source, G &amp; J Gears is entitled to adduce additional evidence on review of the registrar's decision. Apart from the more fundamental objection to the review discussed above, this was not, however, the only difficulty that it faced with respect to the evidence that it wished to adduce on the review. There was a further limitation consequential upon s 459G. That is, the authorities establish that the recipient of a statutory demand cannot apply to have the demand set aside on a ground not raised within the 21 days allowed in s 459G: see Energy Equity Corporation Ltd v Sinedie Pty Ltd [2001] WASCA 419 at [29] per Wallwork J, with whom Steytler J and Olsson AUJ agreed. Under the regime established by the Corporations Act , the Court has no discretion to extend time: compare David Grant &amp; Co Pty Ltd v Westpac Banking Corporation [1995] HCA 43 ; (1995) 184 CLR 265 (" David Grant ") at 277-278 per Gummow J. Brisbane South Regional Health Authority v Taylor [1996] HCA 25 ; (1996) 186 CLR 541, which was relied on by G &amp; J Gears, is not authority to the contrary since it concerned a relevantly different statutory scheme that expressly conferred discretion to enlarge time. Thus, even if a further extension of time had been obtained, it would not have been open to G &amp; J Gears to rely on any claim other than its trademark infringement claim. Providing its initial affidavit satisfied s 459G(3) , it would have been open to G &amp; J Gears to rely on evidence additional to that filed within the 21 day period to support this ground, being a ground that was raised within this period: see Graywinter Properties Pty Ltd v Gas &amp; Fuel Corporation Superannuation Fund (1996) 14 ACLC 1703 at 1709 per Sundberg J, applied in Meadowfield Pty Ltd v Gold Coast Holdings Pty Ltd (in liq) [2001] WASCA 360.
Case: Spencer Constructions Pty Ltd v G &amp; M Aldridge Pty Ltd (1997) 76 FCR 542
Outcome: referred to
The trademark infringement claim did not, however, disclose an offsetting claim. Sections 459H and 459J of the Corporations Act set out the grounds on which a statutory demand may be set aside. G &amp; J Gears relied on s 459H(1)(b). The expression "offsetting claim" is defined in s 459H(5). It has been said that a "genuine" claim requires that (1) the claim "be bona fide and truly exist in fact"; and (2) the grounds for alleging its existence are "real and not spurious, hypothetical, illusory or misconceived": see Spencer Constructions Pty Ltd v G &amp; M Aldridge Pty Ltd (1997) 76 FCR 542 at 464 per Northrop, Merkel and Goldberg JJ. Only a claim that can be quantified in money can constitute an "offsetting claim": see Chase Manhattan Bank Australia Ltd v Oscty Pty Ltd (1995) 17 ACSR 128 at 135 per Lindgren J. In Intag Microelectronics Pty Ltd v AWA Ltd (1995) 18 ACSR 284 at 289, Young J said, "[t]he claim must be one which the court can see, without looking too deeply at the issues that may arise, has some real chances of success." The trademark infringement claim made by G &amp; J Gears does not meet this threshold.
Case: Chase Manhattan Ltd v Oscty Pty Ltd (1995) 17 ACSR 128
Outcome: referred to
The trademark infringement claim did not, however, disclose an offsetting claim. Sections 459H and 459J of the Corporations Act set out the grounds on which a statutory demand may be set aside. G &amp; J Gears relied on s 459H(1)(b). The expression "offsetting claim" is defined in s 459H(5). It has been said that a "genuine" claim requires that (1) the claim "be bona fide and truly exist in fact"; and (2) the grounds for alleging its existence are "real and not spurious, hypothetical, illusory or misconceived": see Spencer Constructions Pty Ltd v G &amp; M Aldridge Pty Ltd (1997) 76 FCR 542 at 464 per Northrop, Merkel and Goldberg JJ. Only a claim that can be quantified in money can constitute an "offsetting claim": see Chase Manhattan Bank Australia Ltd v Oscty Pty Ltd (1995) 17 ACSR 128 at 135 per Lindgren J. In Intag Microelectronics Pty Ltd v AWA Ltd (1995) 18 ACSR 284 at 289, Young J said, "[t]he claim must be one which the court can see, without looking too deeply at the issues that may arise, has some real chances of success." The trademark infringement claim made by G &amp; J Gears does not meet this threshold.
Case: Intag Microelectronics Pty Ltd v AWA Ltd (1995) 18 ACSR 284
Outcome: referred to
The trademark infringement claim did not, however, disclose an offsetting claim. Sections 459H and 459J of the Corporations Act set out the grounds on which a statutory demand may be set aside. G &amp; J Gears relied on s 459H(1)(b). The expression "offsetting claim" is defined in s 459H(5). It has been said that a "genuine" claim requires that (1) the claim "be bona fide and truly exist in fact"; and (2) the grounds for alleging its existence are "real and not spurious, hypothetical, illusory or misconceived": see Spencer Constructions Pty Ltd v G &amp; M Aldridge Pty Ltd (1997) 76 FCR 542 at 464 per Northrop, Merkel and Goldberg JJ. Only a claim that can be quantified in money can constitute an "offsetting claim": see Chase Manhattan Bank Australia Ltd v Oscty Pty Ltd (1995) 17 ACSR 128 at 135 per Lindgren J. In Intag Microelectronics Pty Ltd v AWA Ltd (1995) 18 ACSR 284 at 289, Young J said, "[t]he claim must be one which the court can see, without looking too deeply at the issues that may arise, has some real chances of success." The trademark infringement claim made by G &amp; J Gears does not meet this threshold.
Case: Perpetual Plantations of Australia Ltd v United Tree Farmers Ltd (1993) 10 ACSR 82
Outcome: referred to
Finally, I would not grant G &amp; J Gears leave to amend the motion to seek injunctive relief restraining the winding up proceeding. Counsel for G &amp; J Gears referred to decisions concerning applications for injunctive relief in winding up proceedings, as for example, Perpetual Plantations of Australia Ltd v United Tree Farmers Ltd (1993) 10 ACSR 82 (" Perpetual Plantations ") and Shanefield Pty Ltd v McLaren [1999] QSC 366. As these authorities recognize, a court, on a winding up application, may refuse a winding up order where the alleged ground for winding up is deemed insolvency and the court is satisfied that the debt is genuinely disputed as relevantly defined. Any such statement is subject to the Corporations Act , including s 459S. 65 Finally, Brobo's counsel submitted, and I accept, that if a litigant commences separate proceedings to restrain a winding up ( ex hypothesi , in the same court as the winding up proceeding) there will always be a question as to whether the litigant should have presented its defence to the winding up in the winding up proceeding itself: see Perpetual Plantations at 85-6 per Burley J; also David Grant at 279; and Marlan Financial Services Pty Ltd v New England Agricultural Traders Pty Ltd [1999] VSC 435 per Byrne J. According to Brobo, there were numerous matters that indicated that G &amp; J Gears should present its defence case in the winding up, including that the Davis affidavit was in non-specific terms and did not show that the purpose of the statutory demand was other than to achieve a winding up (see the discussion at [60] above). I accept Brobo's submission. It would appear likely that G &amp; J Gears will have an opportunity, at the hearing of the winding up petition, to rely on the matters in opposition to the winding up that it could not put forward on its application to set aside the statutory demand. These matters would not appear to fall within the prohibition in s 459S of the Corporations Act .
Case: Shanefield Pty Ltd v McLaren [1999] QSC 366
Outcome: referred to
Finally, I would not grant G &amp; J Gears leave to amend the motion to seek injunctive relief restraining the winding up proceeding. Counsel for G &amp; J Gears referred to decisions concerning applications for injunctive relief in winding up proceedings, as for example, Perpetual Plantations of Australia Ltd v United Tree Farmers Ltd (1993) 10 ACSR 82 (" Perpetual Plantations ") and Shanefield Pty Ltd v McLaren [1999] QSC 366. As these authorities recognize, a court, on a winding up application, may refuse a winding up order where the alleged ground for winding up is deemed insolvency and the court is satisfied that the debt is genuinely disputed as relevantly defined. Any such statement is subject to the Corporations Act , including s 459S.
Case: Culture International Pty Ltd v Scoles (1991) 32 FCR 275
Outcome: referred to
First, Brobo's counsel submitted in reply that, whilst a court may have inherent jurisdiction or, in this court, implied incidental power to protect its own process against an abuse, this jurisdiction did not extend to protecting the process of another court. This may state the relevant proposition of law too broadly, although, for present purposes, I accept that the implied incidental power of this court to protect misuse of its process does not extend to protecting the process of the State's Supreme Court. That is a matter for the Supreme Court. See, generally, Sea Culture International Pty Ltd v Scoles (1991) 32 FCR 275 at 279, where French J referred to this court's "implied incidental power to control its own process and to prevent misuse of it"; also Hunter v Leahy [1999] FCA 1075 ; (1999) 91 FCR 214 at 219-220 per French J; Burton v President, &amp;c., of the Shire of Bairnsdale [1908] HCA 57 ; (1908) 7 CLR 76 at 94-95 per Isaacs J; Walton v Gardiner [1992] HCA 12 ; (1993) 177 CLR 378 at 392-4; and Spautz at 519-520.
Case: Hunter v Leahy [1999] FCA 1075 ; (1999) 91 FCR 214
Outcome: referred to
First, Brobo's counsel submitted in reply that, whilst a court may have inherent jurisdiction or, in this court, implied incidental power to protect its own process against an abuse, this jurisdiction did not extend to protecting the process of another court. This may state the relevant proposition of law too broadly, although, for present purposes, I accept that the implied incidental power of this court to protect misuse of its process does not extend to protecting the process of the State's Supreme Court. That is a matter for the Supreme Court. See, generally, Sea Culture International Pty Ltd v Scoles (1991) 32 FCR 275 at 279, where French J referred to this court's "implied incidental power to control its own process and to prevent misuse of it"; also Hunter v Leahy [1999] FCA 1075 ; (1999) 91 FCR 214 at 219-220 per French J; Burton v President, &amp;c., of the Shire of Bairnsdale [1908] HCA 57 ; (1908) 7 CLR 76 at 94-95 per Isaacs J; Walton v Gardiner [1992] HCA 12 ; (1993) 177 CLR 378 at 392-4; and Spautz at 519-520.
Case: Burton v President, &amp;c., of the Shire of Bairnsdale [1908] HCA 57 ; (1908) 7 CLR 76
Outcome: referred to
First, Brobo's counsel submitted in reply that, whilst a court may have inherent jurisdiction or, in this court, implied incidental power to protect its own process against an abuse, this jurisdiction did not extend to protecting the process of another court. This may state the relevant proposition of law too broadly, although, for present purposes, I accept that the implied incidental power of this court to protect misuse of its process does not extend to protecting the process of the State's Supreme Court. That is a matter for the Supreme Court. See, generally, Sea Culture International Pty Ltd v Scoles (1991) 32 FCR 275 at 279, where French J referred to this court's "implied incidental power to control its own process and to prevent misuse of it"; also Hunter v Leahy [1999] FCA 1075 ; (1999) 91 FCR 214 at 219-220 per French J; Burton v President, &amp;c., of the Shire of Bairnsdale [1908] HCA 57 ; (1908) 7 CLR 76 at 94-95 per Isaacs J; Walton v Gardiner [1992] HCA 12 ; (1993) 177 CLR 378 at 392-4; and Spautz at 519-520.
Case: Walton v Gardiner [1992] HCA 12 ; (1993) 177 CLR 378
Outcome: referred to
First, Brobo's counsel submitted in reply that, whilst a court may have inherent jurisdiction or, in this court, implied incidental power to protect its own process against an abuse, this jurisdiction did not extend to protecting the process of another court. This may state the relevant proposition of law too broadly, although, for present purposes, I accept that the implied incidental power of this court to protect misuse of its process does not extend to protecting the process of the State's Supreme Court. That is a matter for the Supreme Court. See, generally, Sea Culture International Pty Ltd v Scoles (1991) 32 FCR 275 at 279, where French J referred to this court's "implied incidental power to control its own process and to prevent misuse of it"; also Hunter v Leahy [1999] FCA 1075 ; (1999) 91 FCR 214 at 219-220 per French J; Burton v President, &amp;c., of the Shire of Bairnsdale [1908] HCA 57 ; (1908) 7 CLR 76 at 94-95 per Isaacs J; Walton v Gardiner [1992] HCA 12 ; (1993) 177 CLR 378 at 392-4; and Spautz at 519-520.
Case: Marlan Financial Services Pty Ltd v New England Agricultural Traders Pty Ltd [1999] VSC 435
Outcome: referred to
Finally, Brobo's counsel submitted, and I accept, that if a litigant commences separate proceedings to restrain a winding up ( ex hypothesi , in the same court as the winding up proceeding) there will always be a question as to whether the litigant should have presented its defence to the winding up in the winding up proceeding itself: see Perpetual Plantations at 85-6 per Burley J; also David Grant at 279; and Marlan Financial Services Pty Ltd v New England Agricultural Traders Pty Ltd [1999] VSC 435 per Byrne J. According to Brobo, there were numerous matters that indicated that G &amp; J Gears should present its defence case in the winding up, including that the Davis affidavit was in non-specific terms and did not show that the purpose of the statutory demand was other than to achieve a winding up (see the discussion at [60] above). I accept Brobo's submission. It would appear likely that G &amp; J Gears will have an opportunity, at the hearing of the winding up petition, to rely on the matters in opposition to the winding up that it could not put forward on its application to set aside the statutory demand. These matters would not appear to fall within the prohibition in s 459S of the Corporations Act .
Case: Anthony Hordern and Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia [1932] HCA 9 ; (1932) 47 CLR 1
Outcome: considered
Counsel for the applicant referred to Hoffman v Chief of Army [2004] FCAFC 148 ; (2004) 137 FCR 520. In fact, the submission was based on the approach to statutory construction summarised by Gavan Duffy CJ and Dixon J in Anthony Hordern and Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia [1932] HCA 9 ; (1932) 47 CLR 1 (at 7) as follows: 'When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power.'
Case: Hoffman v Chief of Army [2004] FCAFC 148 ; (2004) 137 FCR 520
Outcome: referred to
Counsel for the applicant referred to Hoffman v Chief of Army [2004] FCAFC 148 ; (2004) 137 FCR 520. In fact, the submission was based on the approach to statutory construction summarised by Gavan Duffy CJ and Dixon J in Anthony Hordern and Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia [1932] HCA 9 ; (1932) 47 CLR 1 (at 7) as follows: 'When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power.'
Case: Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40 ; (1986) 162 CLR 24
Outcome: referred to
An error of fact is not a jurisdictional error if there was some evidence upon which the finding of fact could be made. An error of fact might, depending on its nature, indicate that the decision-maker did not give proper and genuine consideration to a matter he or she was bound to consider. That would be a jurisdictional error: Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40 ; (1986) 162 CLR 24. If there is error here, it is not of that nature. The Tribunal member clearly considered and considered thoroughly the best interests of the child and the applicant's relationship with his parents. The finding that his parents had not seen him since his release in early 2005 may or may not be an error, but if it is it is an error of fact. Taking into account the applicant's stay with his family in 2005 might lead one to qualify the finding that if in New Zealand the applicant could still maintain the sort of contact with his family that he had had in the past but, even if it did, that would amount to no more than an error of fact. 37 I reject the applicant's submission that there was a jurisdictional error because the Tribunal member failed to take into account the applicant's three-month stay with his family in 2005.
Case: Minister for Immigration v Bhardwaj [2002] HCA 11 ; (2002) 209 CLR 597
Outcome: referred to
The applicant seemed to submit that a decision infected by jurisdictional error was not a purported privative clause decision because it was in fact no decision at all. He referred to Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2 ; (2003) 211 CLR 476 and Minister for Immigration v Bhardwaj [2002] HCA 11 ; (2002) 209 CLR 597.
Case: Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2 ; (2003) 211 CLR 476
Outcome: referred to
The applicant seemed to submit that a decision infected by jurisdictional error was not a purported privative clause decision because it was in fact no decision at all. He referred to Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2 ; (2003) 211 CLR 476 and Minister for Immigration v Bhardwaj [2002] HCA 11 ; (2002) 209 CLR 597.
Case: Shaw v Minister for Immigration and Multicultural Affairs [2003] HCA 72 ; (2003) 218 CLR 28
Outcome: referred to
As to the second submission, the High Court has held that s 501(2) is a valid law with respect to aliens: Shaw v Minister for Immigration and Multicultural Affairs [2003] HCA 72 ; (2003) 218 CLR 28. In Djalic v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 151 ; (2004) 139 FCR 292 the Full Court of this Court held, after it had identified the relevant considerations to the exercise of the power in s 501(2), that the section did not infringe or contravene Chapter III of the Constitution . I will not repeat what I said in Pull at [35]-[37].
Case: NAGM v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 395
Outcome: cited
In NAGM v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 395 , Sackville, Allsop and Jacobson JJ said at [6] that "an order dismissing an application for want of jurisdiction is interlocutory in character, at least where the order does not necessarily finally dispose of the rights of the parties." However in two recent cases, single judges of this Court have specifically considered the nature of summary dismissal under r 13.10 and concluded that it is final in nature: NADZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 975 at [29] per Graham J; MZXEF v Minister for Immigration and Multicultural Affairs [2006] FCA 507 at [18] per Kenny J.
Case: NADZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 975
Outcome: followed
In NAGM v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 395 , Sackville, Allsop and Jacobson JJ said at [6] that "an order dismissing an application for want of jurisdiction is interlocutory in character, at least where the order does not necessarily finally dispose of the rights of the parties." However in two recent cases, single judges of this Court have specifically considered the nature of summary dismissal under r 13.10 and concluded that it is final in nature: NADZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 975 at [29] per Graham J; MZXEF v Minister for Immigration and Multicultural Affairs [2006] FCA 507 at [18] per Kenny J.
Case: MZXEF v Minister for Immigration and Multicultural Affairs [2006] FCA 507
Outcome: followed
In NAGM v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 395 , Sackville, Allsop and Jacobson JJ said at [6] that "an order dismissing an application for want of jurisdiction is interlocutory in character, at least where the order does not necessarily finally dispose of the rights of the parties." However in two recent cases, single judges of this Court have specifically considered the nature of summary dismissal under r 13.10 and concluded that it is final in nature: NADZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 975 at [29] per Graham J; MZXEF v Minister for Immigration and Multicultural Affairs [2006] FCA 507 at [18] per Kenny J.