mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Allesch v Maunz [2000] HCA 40 ; (2000) 203 CLR 172
Outcome: cited
The Debtor swore an affidavit in support of his application. Leaving aside some grounds which were dismissed by the learned Magistrate and not raised on appeal, the Debtor deposed that he was solvent and that any creditor's petition against him would amount to an abuse of process in view of the fact that any such sequestration orders would be "foredoomed to failure based upon my solvency". He deposed that he had "assets which exceed $1 million in value and my liabilities are far less than that figure". The affidavit continued: "11. Further I believe that the Bankruptcy Notice also amounts to an abuse of process by reason of the fact that the assignor of the relevant debt previously filed another Bankruptcy Notice against me in this Court arising out of another proceeding filed in the County Court and has not pursued any bankruptcy proceedings against me on the basis of that principal judgment debt. I believe it has not done so because it knows that I am a solvent person. 12. The appeal proceedings brought against the assignor arose out of that principal County Court proceeding. The purported assignor of the debt was my previous solicitor in Family law proceedings, Messrs. Lennon Settle, and they know full well that I am a solvent person with ample assets. I believe that the Bankruptcy Notice has been filed as an illegitimate attempt to cause me stress and vexation, knowing full well that I am a solvent person. It smacks of an abuse of process designed to persecute me and designed to ulitise this Court s a debt collector when there are ample alternative remedies available to any judgment credit or assignee thereof to collect any judgment debt owed by me." The Debtor's speculation about the beliefs and motives of the Assignor and the Creditor would seem to be inadmissible. No objection was taken. However, as this is an appeal by way of rehearing, the judgment appealed from can be set aside where there is legal, factual or discretionary error: Allesch v Maunz [2000] HCA 40 ; (2000) 203 CLR 172 at [23] (a case which concerned the Family Court but is equally applicable to appeals in the Federal Court: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 ; (2001) 205 CLR 507 at [75] ). It is not clear whether his Honour relied on this evidence, but if and to the extent that he did there would be an error of fact-finding: CSR Ltd v Della Maddalena [2006] HCA 1 ; (2006) 224 ALR 1 at [16] . Unsupported speculation of this kind has no probative value.
Case: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 ; (2001) 205 CLR 507
Outcome: cited
The Debtor swore an affidavit in support of his application. Leaving aside some grounds which were dismissed by the learned Magistrate and not raised on appeal, the Debtor deposed that he was solvent and that any creditor's petition against him would amount to an abuse of process in view of the fact that any such sequestration orders would be "foredoomed to failure based upon my solvency". He deposed that he had "assets which exceed $1 million in value and my liabilities are far less than that figure". The affidavit continued: "11. Further I believe that the Bankruptcy Notice also amounts to an abuse of process by reason of the fact that the assignor of the relevant debt previously filed another Bankruptcy Notice against me in this Court arising out of another proceeding filed in the County Court and has not pursued any bankruptcy proceedings against me on the basis of that principal judgment debt. I believe it has not done so because it knows that I am a solvent person. 12. The appeal proceedings brought against the assignor arose out of that principal County Court proceeding. The purported assignor of the debt was my previous solicitor in Family law proceedings, Messrs. Lennon Settle, and they know full well that I am a solvent person with ample assets. I believe that the Bankruptcy Notice has been filed as an illegitimate attempt to cause me stress and vexation, knowing full well that I am a solvent person. It smacks of an abuse of process designed to persecute me and designed to ulitise this Court s a debt collector when there are ample alternative remedies available to any judgment credit or assignee thereof to collect any judgment debt owed by me." The Debtor's speculation about the beliefs and motives of the Assignor and the Creditor would seem to be inadmissible. No objection was taken. However, as this is an appeal by way of rehearing, the judgment appealed from can be set aside where there is legal, factual or discretionary error: Allesch v Maunz [2000] HCA 40 ; (2000) 203 CLR 172 at [23] (a case which concerned the Family Court but is equally applicable to appeals in the Federal Court: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 ; (2001) 205 CLR 507 at [75] ). It is not clear whether his Honour relied on this evidence, but if and to the extent that he did there would be an error of fact-finding: CSR Ltd v Della Maddalena [2006] HCA 1 ; (2006) 224 ALR 1 at [16] . Unsupported speculation of this kind has no probative value.
Case: CSR Ltd v Della Maddalena [2006] HCA 1 ; (2006) 224 ALR 1
Outcome: cited
The Debtor swore an affidavit in support of his application. Leaving aside some grounds which were dismissed by the learned Magistrate and not raised on appeal, the Debtor deposed that he was solvent and that any creditor's petition against him would amount to an abuse of process in view of the fact that any such sequestration orders would be "foredoomed to failure based upon my solvency". He deposed that he had "assets which exceed $1 million in value and my liabilities are far less than that figure". The affidavit continued: "11. Further I believe that the Bankruptcy Notice also amounts to an abuse of process by reason of the fact that the assignor of the relevant debt previously filed another Bankruptcy Notice against me in this Court arising out of another proceeding filed in the County Court and has not pursued any bankruptcy proceedings against me on the basis of that principal judgment debt. I believe it has not done so because it knows that I am a solvent person. 12. The appeal proceedings brought against the assignor arose out of that principal County Court proceeding. The purported assignor of the debt was my previous solicitor in Family law proceedings, Messrs. Lennon Settle, and they know full well that I am a solvent person with ample assets. I believe that the Bankruptcy Notice has been filed as an illegitimate attempt to cause me stress and vexation, knowing full well that I am a solvent person. It smacks of an abuse of process designed to persecute me and designed to ulitise this Court s a debt collector when there are ample alternative remedies available to any judgment credit or assignee thereof to collect any judgment debt owed by me." The Debtor's speculation about the beliefs and motives of the Assignor and the Creditor would seem to be inadmissible. No objection was taken. However, as this is an appeal by way of rehearing, the judgment appealed from can be set aside where there is legal, factual or discretionary error: Allesch v Maunz [2000] HCA 40 ; (2000) 203 CLR 172 at [23] (a case which concerned the Family Court but is equally applicable to appeals in the Federal Court: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 ; (2001) 205 CLR 507 at [75] ). It is not clear whether his Honour relied on this evidence, but if and to the extent that he did there would be an error of fact-finding: CSR Ltd v Della Maddalena [2006] HCA 1 ; (2006) 224 ALR 1 at [16] . Unsupported speculation of this kind has no probative value.
Case: Maxwell-Smith v S &amp; E Hall Pty Ltd [2006] FCA 825
Outcome: cited
His Honour referred to statements of principle including those in Maxwell-Smith v S &amp; E Hall Pty Ltd [2006] FCA 825 when Jacobson J cited a number of propositions including at [43]: "If it is apparent to the Court that the purpose of a bankruptcy notice is to put pressure on a debtor to pay a debt, rather than to invoke the Court's insolvency jurisdiction, the issue of the bankruptcy notice will be an abuse of process." [Authorities cited] 15 The learned Magistrate at [56] found the evidence of the Debtor's solvency "clearly deficient". This aspect has not been pursued on the appeal.
Case: Etl v Settle [2004] FMCA 718
Outcome: cited
His Honour at [57] thought that the Creditor had been "less than frank" with the Court in divulging the true circumstances leading up to the execution of the assignment. He noted that the assignment itself had not been produced and there might have been formal defects in it. His Honour continued: "58. In any event, applying the authorities to which reference has been made, I am satisfied that the bankruptcy notice has been issued as a means to secure payment of the debt and further that it has a collateral purpose. On that basis, I am satisfied it is an abuse of process and should be set aside. 59. It is clear on the evidence before me that the Creditor has issued the bankruptcy notice solely for the purpose of securing payment of the debt and has failed to take any appropriate action to otherwise recover the debt or even make demand upon the Debtor for payment of the debt. The demand made on the Debtor was a demand made by the assignor prior to the assignment of the debt. 60. The collateral purpose in my view having regard to the history set out in the court's earlier decision in Etl v Settle [[2004] FMCA 718] was to circumvent the operation of s.44 of the Bankruptcy Act . I am satisfied that the close relationship between the Creditor and the assignor illustrates that this procedure undertaken for the first time by the Creditor was a procedure which had as its collateral purpose a benefit to the Creditor's friend and professional colleague of avoiding the operation against the assignor of s.44 of the Bankruptcy Act . 61. I am satisfied on the material before me, including the history set out in the Court's earlier judgment to which I have already referred, that there was a benefit to the assignor of 'syphoning off' a small part of the total debt allegedly owed by the Debtor to the assignor in a manner that would enable the current Creditor to pursue a sequestration order after the issue of a bankruptcy notice in a manner which would not attract the operation of s.44 of the Bankruptcy Act to the detriment of the assignor. 62. The use of bankruptcy proceedings in this contrived manner in my view is an abuse of process, as it has clearly been undertaken at least in part to satisfy [the] collateral purpose of obtaining a benefit to the assignor of becoming a Creditor without sacrificing security. This contrived arrangement is an inappropriate use of bankruptcy proceedings and a blatant attempt to avoid the consequences of the operation of s.44 of the Bankruptcy Act ."
Case: Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18 ; (2000) 200 CLR 121
Outcome: cited
There was no evidence to base the finding in [59] that the Creditor issued the notice "solely" for the purpose of securing payment of the debt. Even if the Magistrate did not find him a credible witness, disbelief of him could not found a positive conclusion as to the existence of the relevant purpose, proof whereof lay on the Debtor: Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18 ; (2000) 200 CLR 121 at [53] , King v Collins [2007] NSWCA 122 at [42] .
Case: King v Collins [2007] NSWCA 122
Outcome: cited
There was no evidence to base the finding in [59] that the Creditor issued the notice "solely" for the purpose of securing payment of the debt. Even if the Magistrate did not find him a credible witness, disbelief of him could not found a positive conclusion as to the existence of the relevant purpose, proof whereof lay on the Debtor: Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18 ; (2000) 200 CLR 121 at [53] , King v Collins [2007] NSWCA 122 at [42] .
Case: B luescope Steel Ltd (ACN 000 011 058) v Kelly [2007] FCA 517
Outcome: cited
I should note that, even if the Kabi Kabi #2 Applicant had been joined as a party as at 3 May 2007, in my view it is unlikely that it would have been entitled to recovery of its costs in connection with preparation of the relevant affidavits given that these were costs incurred prior to joinder (cf Bluescope Steel Ltd (ACN 000 011 058) v Kelly [2007] FCA 517 at [192] and Bray v F Hoffman-La Roche Ltd [2003] FCA 1505 at [40] ). THE COURT ORDERS THAT: 1. The native title determination application Edna Van Hemmen and Ors on behalf of the Kabi Kabi People #3 v State of Queensland and Ors QUD136 of 2006 filed 7 April 2006 be dismissed pursuant to s 84C Native Title Act 1993 (Cth). 2. There be no order as to costs in respect of the collation and preparation of those affidavits filed in this matter on 20 April 2007 by the applicant in the proceedings known as Lance Hill and Ors on behalf of the Kabi Kabi People #2 v State of Queensland and Ors QUD65 of 2006. I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate: Dated: 9 August 2007 Counsel for the Applicant: P Poynton and D Topp Solicitor for the Applicant: Bernice Anning Solicitors Solicitor for the First Respondent: Crown Law Counsel for the Second and Third Respondents: D Rangiah Solicitor for the Second Respondent: Gurang Land Council Solicitor for the Third Respondent: Queensland South Native Title Services Counsel for Kabi Kabi #2: A Preston Date of Hearing: 3 May 2007 Date of Judgment: 9 August 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1185.html
Case: Bodney v Bropho [2004] FCAFC 226 ; (2004) 140 FCR 77
Outcome: cited
To the extent that there is overlap with respect to the operation of s 84C and O 20 r 2 in the context of native title cases, I note that: &#8226; unlike O 20 r 2 which applies generally, s 84C is clearly limited to native title determination applications under the Act &#8226; section 84C applies where an application does not comply with ss 61 , 61A or 62 , whereas O 20 r 2 is only enlivened if no reasonable cause of action is disclosed, the proceeding is frivolous or vexatious, or the proceeding is an abuse of process &#8226; the Courts have tended to equate the consequences of strike-out under s 84C with those of summary dismissal under O 20 r 2: Williams v Grant [2004] FCAFC 178 at [48] - [49] . Accordingly the Courts approach such matters with caution, and on the basis that no court proceeding should be summarily dismissed except in a very clear case: Bodney v Bropho [2004] FCAFC 226 ; (2004) 140 FCR 77 at 89.
Case: Brasington v Overton Investments Pty Ltd [2001] FCA 57
Outcome: cited
Mr Topp for the Kabi Kabi #3 Applicant submitted in summary: &#8226; the notice of motion of 29 June 2006 was an interlocutory step in the proceeding. Costs of interlocutory proceedings should be costs in the cause and not taxed until the end of the proceedings: O 62 r 3(3) Federal Court Rules , Brasington v Overton Investments Pty Ltd [2001] FCA 57 &#8226; as a consequence of s 85A, in relation to native title applications there is no expectation that costs will follow the event &#8226; persons, entities or groups other than the respondents should not be entitled to any form of costs order in respect of the 29 June 2006 notice of motion, whether a deemed costs in their cause order or at all. The directions made on 9 March 2007, where the Kabi Kabi #3 Applicant was ordered to serve the Kabi Kabi #2 Applicant with the relevant documents, did not require or otherwise oblige the Kabi Kabi #2 Applicant to file affidavits, outlines of argument or any other material, nor to do anything else at all. 46 I note the submission of Mr Preston that the 29 June 2006 notice of motion had been on foot for almost a year at the time of the hearing of 3 May 2007, and that the Kabi Kabi #3 Applicant had known since at least late April 2006 that authorisation was an issue in the proceedings. In this respect advancement of the Kabi Kabi #3 Application appears to have been afflicted by some ennui. 47 However, I also note that, while not determinative of the claim of the Kabi Kabi #2 Applicant, no orders have been sought by State of Queensland, Gurang Land Council or QSNTS, which were parties to the proceedings, for costs against the Kabi Kabi #3 Applicant in relation to its discontinuance of the 29 June 2006 notice of motion.
Case: Bray v F Hoffman-La Roche Ltd [2003] FCA 1505
Outcome: cited
I should note that, even if the Kabi Kabi #2 Applicant had been joined as a party as at 3 May 2007, in my view it is unlikely that it would have been entitled to recovery of its costs in connection with preparation of the relevant affidavits given that these were costs incurred prior to joinder (cf Bluescope Steel Ltd (ACN 000 011 058) v Kelly [2007] FCA 517 at [192] and Bray v F Hoffman-La Roche Ltd [2003] FCA 1505 at [40] ). THE COURT ORDERS THAT: 1. The native title determination application Edna Van Hemmen and Ors on behalf of the Kabi Kabi People #3 v State of Queensland and Ors QUD136 of 2006 filed 7 April 2006 be dismissed pursuant to s 84C Native Title Act 1993 (Cth). 2. There be no order as to costs in respect of the collation and preparation of those affidavits filed in this matter on 20 April 2007 by the applicant in the proceedings known as Lance Hill and Ors on behalf of the Kabi Kabi People #2 v State of Queensland and Ors QUD65 of 2006. I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate: Dated: 9 August 2007 Counsel for the Applicant: P Poynton and D Topp Solicitor for the Applicant: Bernice Anning Solicitors Solicitor for the First Respondent: Crown Law Counsel for the Second and Third Respondents: D Rangiah Solicitor for the Second Respondent: Gurang Land Council Solicitor for the Third Respondent: Queensland South Native Title Services Counsel for Kabi Kabi #2: A Preston Date of Hearing: 3 May 2007 Date of Judgment: 9 August 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1185.html
Case: CFMEU v Queensland Coal and Oil Shale Mining Industry (Superannuation) Ltd [2003] FCA 1174
Outcome: cited
In my view the following points are relevant in considering the issue of costs: &#8226; first, the policy of the Act with respect to costs as articulated in s 85A is that parties should bear their own costs unless there are such circumstances as specified in s 85A(2): De Rose [2005] FCAFC 137. Logically, it follows that this policy is equally applicable to non-parties - such as the Kabi Kabi #2 Applicant - who incur costs in respect of litigation under the Act &#8226; second, the Kabi Kabi #2 Applicant requested at the directions hearing of 9 March 2007 that it be served with such material as the Kabi Kabi #3 Applicant should file and serve on the respondents to the Kabi Kabi #3 Application, and that it should be entitled to be heard at the hearing on 3 May 2007. In my view the position of the Kabi Kabi #2 Applicant is analogous to that of an intervener in this case, and I note that as a general rule the Court tends not to apply conventional rules as to recovery of costs to interveners: Wilcox J in CFMEU v Queensland Coal and Oil Shale Mining Industry (Superannuation) Ltd [2003] FCA 1174 at [11] - [12] &#8226; third, as Mr Topp submitted, the directions made on 9 March 2007 did not require or otherwise oblige the Kabi Kabi #2 Applicant to file affidavits, outlines of argument or any other material, nor to do anything else at all. Indeed, the Kabi Kabi #2 Applicant is not a party to the proceedings. While the Kabi Kabi #2 Applicant has an interest in the proceedings for obvious reasons, I can identify no requirement of reason or justice which entitles the Kabi Kabi #2 Applicant to recover its costs against the Kabi Kabi #3 Applicant with respect to preparation of material for the hearing of the 29 June 2006 notice of motion &#8226; in these circumstances, and taking into account the principle that an order for payment of costs in favour of a non-party will be exceptional and therefore must be treated with considerable caution, in my view it is not appropriate to order the costs sought by the Kabi Kabi #2 Applicant to be paid by the Kabi Kabi #3 Applicant.
Case: Moran v Minister for Land &amp; Water Conservation for the State of New South Wales [1999] FCA 1637
Outcome: considered
I note that the fact that the group comprising the applicant does not include all possible members of the group would not in itself mean that the authority of the applicant was absent if it was in fact a representative body, however as pointed out by Wilcox J in Moran v Minister for Land &amp; Water Conservation for the State of New South Wales [1999] FCA 1637 at [34] : a person who wishes to rely on a decision by a representative or other collective body needs to prove that such a body exists under customary law recognised by the members of the group, the nature and extent of the body's authority to make decisions binding the members of the group and that the body has authorised the making of the application. 25 I am not satisfied that such a representative body exists in this case as contemplated by his Honour in Moran [1999] FCA 1637. 26 Second, although it is asserted in the Kabi Kabi #3 Application that the authorisation of the application in this case was pursuant to a process of decision-making in accordance with traditional laws and customs, it does not appear to be in dispute that a traditional decision-making process involves, inter alia , appropriate consultation, and consensus of relevant persons in the group (Niblett affidavit paras 11-19, MacDonald affidavit paras 7- 8). Even if the decision-making process in Kabi Kabi #3 had elements of traditional law and customs, I note comments of Mr Niblett that the processes of decision-making referred to in affidavits of persons comprising the Kabi Kabi #3 Applicant did not appear to have had the level of collective interaction and discussion to be expected in the "traditional" context, nor may all relevant parties have been adequately consulted. In this respect I note from Ms MacDonald's affidavit that she predicated her comments concerning majority decision-making on adequate consultation of relevant persons, which is in serious dispute in this case as is clear from evidence of, for example, Mr Niblett, Ms Bond, Mr Dalton and Ms Yavu-Kama-Harathunian.