mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 662
Outcome: referred to
So, in Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 662 at 624-625, McHugh J commented on the difficulties inherent in a court seeking to allocate costs in circumstances such as the present. As he pointed out, when there has been no hearing on the merits, a court is necessarily deprived of the factor that usually determines whether or how it should make a costs order. 22 In the circumstances which I have briefly described it is also conceivable that Mrs Clark may have had claims under each policy, depending on the precise way in which the facts came out, particularly, what advice or other services may or may not have been given or performed by Adept in accordance with its professional obligations to her. On the pleadings and material before me, there was a sufficient basis for Mrs Clark to bring these proceedings and pursue them to judgment against both the respondents which she chose to sue, even if, properly advised, she may have been better advised to have sued Suncorp, either alone or with ING and Adept as additional respondents. 23 Mrs Clark suffered the trauma of breast cancer. That trauma was one risk in respect of which she had contracted to have the protection of insurance cover while bringing up a young family. It is not something that can be put to one side as an irrelevant consideration in determining the reasonableness of her course of action. If a person, in the position of Mrs Clark, has to deal with a life threatening illness or condition, such as cancer, she cannot be expected to take immediately every logical, rational or commercial decision which a large corporation with adequate resources and insurance might. Such a decision is particularly difficult for a person in her position, where as an individual, she would be required to take on the burden of litigation against well-resourced insurance companies and insurance brokers, who are entitled to resist the claims made against them.
Case: Smith v Airservices Australia [2005] FCA 997 ; (2005) 146 FCR 37
Outcome: applied
In Smith v Airservices Australia [2005] FCA 997 ; (2005) 146 FCR 37 at 47-50 [36] - [49] Stone J examined a number of cases in which the principles had been explored. She noted that Finn J had said in O'Neill [2000] FCA 1680 at [13] that while there is an underlying policy that a party who discontinues proceedings is to be held liable for the costs of the other parties unless the Court otherwise orders, the reasons for, and circumstances of, discontinuance are so various that the policy cannot safely be said to have hardened into a usual rule. Finn J had observed that this was different to the usual rule which exists where there has been a determination of a claim on its merits.
Case: The Owners of The Ship ' Shin Kobi Maru' v Empire Shipping Co Inc [1994] HCA 54 ; (1994) 181 CLR 404
Outcome: cited
It is inappropriate to read provisions such as s 43(2) of the Act, which confer jurisdiction or grant powers to a court, by making conditions or imposing limitations which are not to be found in the words used: The Owners of The Ship ' Shin Kobi Maru' v Empire Shipping Co Inc [1994] HCA 54 ; (1994) 181 CLR 404 at 421; Oshlack v Richmond River Council [1998] HCA 11 ; (1998) 193 CLR 72 at 81 [21] per Gaudron and Gummow JJ.
Case: Conley &amp; Anor v Commissioner of Taxation &amp; Anor (1998) 81 FCR 24
Outcome: referred to
The concept of money 'belonging to' someone is a reference to money as a form of property; either coins and notes as chattels in possession; alternatively in the case of bank notes they may also be choses in action; negotiable instruments as choses in action; commercially acceptable forms of payment such as bank transfers, credit cards and debit cards, although not charge cards; and even deposits and credit balances to current accounts with banks and comparable institutions: See generally Mann on the Legal Aspect of Money , Sixth Edition, by Charles Proctor, 2005, Oxford University Press, Chapter 1: The Concept of Money. See too Conley &amp; Anor v Commissioner of Taxation &amp; Anor (1998) 81 FCR 24 at 27, 28 per Davies J; on appeal (1998) 88 FCR 98 at 104, 105 per Emmett J.
Case: Deputy Commissioner of Taxation v Conley (1998) 88 FCR 98
Outcome: referred to
The concept of money 'belonging to' someone is a reference to money as a form of property; either coins and notes as chattels in possession; alternatively in the case of bank notes they may also be choses in action; negotiable instruments as choses in action; commercially acceptable forms of payment such as bank transfers, credit cards and debit cards, although not charge cards; and even deposits and credit balances to current accounts with banks and comparable institutions: See generally Mann on the Legal Aspect of Money , Sixth Edition, by Charles Proctor, 2005, Oxford University Press, Chapter 1: The Concept of Money. See too Conley &amp; Anor v Commissioner of Taxation &amp; Anor (1998) 81 FCR 24 at 27, 28 per Davies J; on appeal (1998) 88 FCR 98 at 104, 105 per Emmett J.
Case: Ex parte Walton; re Levy (1881) 17 Ch D 746
Outcome: applied
But like all deeming provisions, they have to be construed strictly and only for the purpose to which they are resorted: Ex parte Walton; re Levy (1881) 17 Ch D 746 per James LJ at 756; Federal Commissioner of Taxation v Comber (1986) 10 FCR 88 at 96 per Fisher J. In other words, it does not operate to deem a person to have the control of money belonging to a non-resident save where the person is liable to pay money to that non-resident. So if a person [A] is liable to pay money to a non-resident [B], and B is liable to pay the same amount of money to another non-resident [C], A is not, by virtue of subs 255(2), deemed to have the control of money belonging to C. Nor, in such a case, will A have the control of money belonging to C on the analysis in [57] supra.
Case: Federal Commissioner of Taxation v Comber (1986) 10 FCR 88
Outcome: applied
But like all deeming provisions, they have to be construed strictly and only for the purpose to which they are resorted: Ex parte Walton; re Levy (1881) 17 Ch D 746 per James LJ at 756; Federal Commissioner of Taxation v Comber (1986) 10 FCR 88 at 96 per Fisher J. In other words, it does not operate to deem a person to have the control of money belonging to a non-resident save where the person is liable to pay money to that non-resident. So if a person [A] is liable to pay money to a non-resident [B], and B is liable to pay the same amount of money to another non-resident [C], A is not, by virtue of subs 255(2), deemed to have the control of money belonging to C. Nor, in such a case, will A have the control of money belonging to C on the analysis in [57] supra.
Case: Melluish v BMW (No. 3) Ltd (1996) AC 454
Outcome: referred to
The concept of 'belonging' in the context of property, being plant and machinery, has been held in a different statutory context, to require absolute ownership of the property in law or in equity: Melluish v BMW (No. 3) Ltd (1996) AC 454. However, having regard to the different forms money can take as an item of property and to its peculiar characteristic of fungibility, there may be, depending on the circumstances, an inherent tension in referring to money in the receipt, control or disposal of one person being owned by another person; in some forms, the money will be owned by the person having the receipt, control or disposal of the money even though that person may be under some obligation to account for that money to another person; and that may explain why the legislature chose to use the phrase 'belonging to' rather than 'owned by'. The phrase 'belonging to' is a more elastic concept and better accommodates a situation where a person having the receipt, control or disposal of money is under an obligation to account for that money to another person. 57 However, outside the deeming afforded in the circumstances described in subs 255(2), for money (the relevant money) to qualify as 'belonging to' a person (the first person) where another person has the receipt, control or disposal of it, there must be an obligation annexed to the relevant money itself in favour of the first person; it would not be sufficient, in my view, that the only obligation of the person having the receipt, control or disposal of the relevant money is to pay to the first person a sum equivalent to the relevant money because, for example, the first person is a creditor of the person having the receipt, control or disposal of the relevant money. In that situation the relevant money, in the hands of the person having the receipt, control or disposal of it, would not belong to the first person, but for the deeming provided by subs 255(2). 58 Subsection 255(2) of the ITAA 1936 is a deeming provision; it deems a person who is liable to pay money to a non-resident to be a person having the control of money belonging to the non-resident; it also deems all money due by him to the non-resident to be money which comes to him on behalf of the non-resident. Without the first deeming, the person who is liable to pay may not have control of any money and, if he does, the money may not belong to the non-resident; it may well belong to the person liable to pay. Without the second deeming, the retention mandated by par (b) may not operate. These deeming provisions are obviously designed to overcome such problems.
Case: Bryant v Commonwealth Bank of Australia (1997) FCR 545
Outcome: referred to
The meaning of s 60(4)(a) was also considered by the Full Court of the Federal Court in Bryant v Commonwealth Bank of Australia (1997) 75 FCR 545. O'Loughlin and Merkel JJ concluded that (at 564): ... Mr Bryant's causes of action, as pleaded in his statement of claim, are essentially claims which are referable to his financial and property rights. That is not to deny him his right to allege "personal injury or wrong done to" him or members of his family. But if the injury that was suffered or the wrong done arose as a direct result of the alleged infringements of his financial or property rights, as was the case in Faulkner v Bluett , then "the primary and substantial right of action is direct pecuniary loss to the property or estate of the bankrupt". (at 119) To apply the language of Handley JA in Manningell v Hewlett to Mr Bryant's circumstances his claims for stress and suffering were "consequential upon alleged breaches" of duty said to be owed to him by the Bank as a mortgagee or secured creditor and were not claims "without reference to [his] rights of property", within the principle stated by Dixon J in Cox v Journeaux . 41 The Court concluded that the loss complained of arose from direct pecuniary loss to the bankrupt's property.
Case: Daemar v Industrial Commission of New South Wales and Another ( No 2 ) (1990) 99 ALR 789
Outcome: referred to
The respondents submit that as a result of the deemed abandonment of the proceedings, the stay provided by s 60(2) continues to operate, referring to the discussion by Ipp J in Stobbart v Mocnaj (1996) 16 WAR 318 at 323. The effect of the deemed abandonment of the proceedings, where the applicant may not continue the proceedings in his own name, is that the proceedings are stayed: Daemar v Industrial Commission of New South Wales and Another (No 2) (1990) 99 ALR 789, per Kirby P at 790. 38 The respondents submit that neither of the proceedings fall within the description in s 60(4) (an action in respect of any personal injury or wrong) and thus neither may be continued by the bankrupt. The respondents also submit that to the extent that it could be said that the applicant has identified causes of action which individually fall within s 60(4)(a) , those causes of action have not been properly pleaded and should be struck out or dismissed. The respondents identified the latter causes of action as potentially being: &#8226; Causes of action for damages and other remedies for injuries allegedly done to the applicant and members of his family; &#8226; Unlawful detention and deprivation of liberty; &#8226; Unlawful interference with and possession of personal property; and &#8226; Damages for injury to credit, character and reputation (defamation).
Case: Hamilton v Young [2007] QSC 1
Outcome: referred to
The Supreme Court of Queensland recently considered the issue of severance of claims under s 60(4) in Hamilton v Young [2007] QSC 160. The Court in Hamilton considered the issue of whether a claim for damages for the cost of raising an unplanned child can be characterised as claim for damages for "personal injury or wrong". The Court was not asked to stay the part of the bankrupt's claim for personal injuries, but was asked to stay that part of her action claiming damages for the cost of raising her child. Douglas J (at [11]) considered that the word "wrong" in s 60(4) identified a personal tort affecting the person or feelings of the bankrupt, and not, as in the circumstances in Hamilton , the loss to her of property caused by the expense of bringing up her child.
Case: Commonwealth of Australia v Riley (1987) 5 FCR 8
Outcome: referred to
In Commonwealth of Australia v Riley (1987) 5 FCR 8, the Full Court of this Court said, albeit in the context of the Extradition (Foreign States) Act 1966 (Cth) (at 34): 'Counsel submitted that there were two other categories of material which should also be disregarded: evidence of conversations which is not in the form of direct speech and statements of conclusions of witnesses. We disagree. Section 26(1)(a) of the Extradition (Foreign States) Act 1966 deals with the form of evidence in a proceeding under the Act namely: "a document, duly authenticated, that purports to set out testimony given on oath, or declared or affirmed to be true, by a person in a foreign state is admissible as evidence of the matter stated in the testimony". That provision is wide enough to authorise the proof of the substance of a conversation by a narrative using indirect speech. There is nothing in the Treaty to limit the application of that provision in proceedings to which the Treaty applies; Article XI(3) merely requires the transmission of "such evidence, as according to the laws of the requested state, would justify his trial or committal for trial ...". The provision deals only with the sufficiency, not the form, of evidence. The rule that evidence of conversations shall be given in direct speech is, in Australia, a rule of practice rather than of law; a practice that is probably now disregarded as often as it is followed. To apply to affidavits prepared in another country the rules of mere practice of our own courts would be substantially to diminish the utility of the Act; cf R v Governor of Pentonville Prison; Ex parte Passingham [1983] 2 AC 464.' 83 In my opinion, there is a rule of practice at common law that requires a witness to recount the actual words used in a conversation if he or she is able to do that: Commonwealth of Australia v Riley (supra); LMI Australasia Pty Ltd v Baulderstone Hornibrook Pty Ltd (supra); J H Wigmore, 3 Wigmore on Evidence SS766 (Chadbourn rev 1970). If the witness is unable to recall the actual words used, he or she can give evidence of the substance or effect of what was said. A witness might say he or she cannot remember the actual words used. I think that as a matter of practice it is also open to the Court to infer that that is the case. I would be disposed to draw that inference in the case of the relevant paragraphs in Mr Gawronski's affidavit bearing in mind the lapse of time between the conversation and the swearing of the affidavit, the apparent length and complexity of the conversation and the fact that an actual word used is from time to time identified by quotation marks. However, I do not need to finally determine the point because I think the evidence is admissible by reason of the provisions of the Evidence Act 1995 (Cth).
Case: George v Hamilton-Smith (No 2) [2006] FMCA 1018
Outcome: referred to
I turn now to examine the Federal Magistrate's reasons for judgment ( George v Hamilton-Smith (No 2) [2006] FMCA 1018). The Magistrate noted that the appellant was unsuccessful in having the bankruptcy notice issued by the respondent set aside. He referred to the proceedings between Bernsteen and the appellant. Those proceedings involved a claim by Bernsteen and a cross-claim by the appellant and had not yet come on for trial. The Federal Magistrate did not consider those proceedings to be of significance unless Bernsteen sought to be substituted for the respondent. 40 The Federal Magistrate outlined the events before the State Magistrate in the State Magistrates Court proceedings on 13 June 2006 and the circumstances leading to the entry of judgment against the appellant with costs. The Federal Magistrate discussed the arguments that the appellant said that she would put in favour of her (then) application for leave to appeal from the orders made by the State Magistrate. The Federal Magistrate described the appellant's submissions in the following way: 'The debtor argues that the decision of the learned Magistrate was so clearly wrong and so clearly appellable that I should exercise my discretion not to make a sequestration order so that what he describes as the "very real dispute between the parties" can be allowed to be litigated. He argues that given the small amount of the judgment debt this would be the appropriate course of action to take because of the lengthy delay that may occur between now and the final determination of the dispute, assuming that the Supreme Court of South Australia allows his appeal. Alternatively, he asks that the court adjourn the hearing of the petition until the matter is decided.' 41 The Federal Magistrate said that the relevant paragraphs of Mr Gawronski's affidavit were put forward to prove that there was a 'secret agreement' between the respondent and the liquidator of Bernsteen. He rejected the tender of the relevant paragraphs of Mr Gawronski's affidavit (ie, paragraphs 13.1 to 13.5 inclusive) because the paragraphs were not 'in proper form because the conversations deposed to were not set out in direct speech but consisted of a summary of the conversation'. The Federal Magistrate said that there was insufficient evidence that the creditor's petition was brought for an improper or collateral purpose.
Case: Makhoul v Barnes (1995) 60 FCR 572
Outcome: referred to
The fact that the Registrar determined this question against the appellant on the application to set aside the bankruptcy notice did not give rise to an issue estoppel preventing the appellant from raising the question again on the hearing of a creditor's petition: Makhoul v Barnes (1995) 60 FCR 572. However, the Court is not bound to allow the matter to be raised again and ordinarily the Court will accept that the judgment debt is still owing. In Makhoul v Barnes the Full Court of this Court said (at 582): 'However, the Court has a discretion whether to make a sequestration order even where an act of bankruptcy has been committed. If the Court determines that the circumstances are such that the Court should go behind the judgment debt relied upon in a bankruptcy notice and having done so is not satisfied that there has been shown to be real consideration for it, it will, in the sense discussed above in the exercise of that discretion, dismiss the petition notwithstanding a proved act of bankruptcy. Where the Court has already investigated that question on an application to set aside the bankruptcy notice, it would no doubt rarely, if ever, do so again. But this is not because an issue estoppel has been raised. It is because the debt has already been investigated by the Court so that it would not be an appropriate case to revisit the matter. Rather, the Court would (at least ordinarily) accept the judgment as evidence of the debt.' 56 It is true that these remarks were made in the context of a claim to go behind a judgment debt, but I see no reason why they do not also apply in a case where the claim is that the judgment debt has been satisfied. I have read the transcript of submissions before the Federal Magistrate and it was not put to him that he should investigate and determine the question of whether there had been an accord and satisfaction. Furthermore, his reasons for judgment suggest that he was not asked to do this. He does refer to the reasons for judgment of Registrar Christie on the application to set aside the bankruptcy notice but this was in a different context, namely, in the context of considering the appellant's prospects of success in the State Magistrates Court proceedings. 57 I have given anxious consideration to whether the appellant should be able to raise this point on appeal. If she is, it is a point that cannot be determined by me. The matter would need to go back to a Federal Magistrate for determination of the point after hearing evidence in much the same way as the Registrar did when she heard the application to set aside the bankruptcy notice.
Case: Rozenbes v Kronhill [1956] HCA 65 ; (1956) 95 CLR 407
Outcome: referred to
The relevant principles as to what constitutes an improper purpose were stated by the High Court in Rozenbes v Kronhill [1956] HCA 65 ; (1956) 95 CLR 407. The Court referred to a number of English authorities on what amounts to 'extortion'. The Court said that the question is whether the court process is being used for illegitimate purposes such as recovering a larger amount from the debtor than could be recovered by legal proceedings. The Court said (at 417): 'The case seems finally to establish that the ultimate principle involved is that a court will not allow its process to be abused. There is an abuse of process if a pending bankruptcy petition, or a threat of proceedings in bankruptcy, is used as a means of extortion. The word "extortion" is not a technical term, and it has in bankruptcy law "no special and artificial significance divorced altogether from the ordinary implication of the word". The court will look strictly at the conduct of a creditor using or threatening bankruptcy proceedings, and extortion may be held to have taken place if the creditor has used, or attempted to use, a pending petition, or a threat of a petition, in order to extract from the debtor money which the debtor is not bound to pay, or in order to obtain some secret and unfair advantage over other creditors. But extortion will not be held to have taken place "in the absence of mala fides or anything amounting to oppression in fact". There must be a real intention on the part of the creditor to use the process for some other end than its legitimate end, and there must be a real exertion of pressure.' 72 The other point which emerges from the case (at 419) is that even if an improper purpose is established it does not follow that a sequestration order will not be made. The Court retains a discretion to make such an order. 73 Although the improper purpose point was not referred to in the appellant's Notice of Intention to Oppose Petition, there is no doubt that it was raised as a ground of challenge both before the Registrar on 20 June 2006 and the Federal Magistrate on 5 July 2006.