mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Registrar of Titles of the State of Western Australia v Franzon [1975] HCA 41 ; (1975) 132 CLR 611
Outcome: referred to
I have not overlooked the view I expressed above that, for the purposes of s 9(6) and s 46A(2A) of the Act, the determination in writing of the Minister and of the CEO of the ACC respectively must be signified or effected by a signature or other mark of the relevant natural person. It is generally expected that the same expression in different provisions of an enactment will bear the same meaning: see e.g. per Mason J in Registrar of Titles of the State of Western Australia v Franzon [1975] HCA 41 ; (1975) 132 CLR 611 at 618. What s 7C(3) requires to constitute a determination in writing by the Board must however be ascertained having regard to the purposes of that particular provision, and the absence of any legislative prescription other than s 7G as to how the Board may do so, and the absence of any provision for the Board to have a common seal. In the circumstances, I do not think my conclusion reflects any inconsistency in the use of the requirement of a determination in writing in the provisions of the Act. In any event, the approach to construction requiring such consistency is not required to be applied inevitably but in the light of the relevant provisions: per Gibbs CJ in McGraw-Hinds (Aust) Pty Ltd v Smith [1979] HCA 19 ; (1978) 144 CLR 633 at 643; and per Deane, Dawson and Gaudron JJ in Murphy v Farmer [1988] HCA 31 ; (1988) 165 CLR 19 at 26-28.
Case: McGraw-Hinds (Aust) Pty Ltd v Smith [1979] HCA 19 ; (1978) 144 CLR 633
Outcome: referred to
I have not overlooked the view I expressed above that, for the purposes of s 9(6) and s 46A(2A) of the Act, the determination in writing of the Minister and of the CEO of the ACC respectively must be signified or effected by a signature or other mark of the relevant natural person. It is generally expected that the same expression in different provisions of an enactment will bear the same meaning: see e.g. per Mason J in Registrar of Titles of the State of Western Australia v Franzon [1975] HCA 41 ; (1975) 132 CLR 611 at 618. What s 7C(3) requires to constitute a determination in writing by the Board must however be ascertained having regard to the purposes of that particular provision, and the absence of any legislative prescription other than s 7G as to how the Board may do so, and the absence of any provision for the Board to have a common seal. In the circumstances, I do not think my conclusion reflects any inconsistency in the use of the requirement of a determination in writing in the provisions of the Act. In any event, the approach to construction requiring such consistency is not required to be applied inevitably but in the light of the relevant provisions: per Gibbs CJ in McGraw-Hinds (Aust) Pty Ltd v Smith [1979] HCA 19 ; (1978) 144 CLR 633 at 643; and per Deane, Dawson and Gaudron JJ in Murphy v Farmer [1988] HCA 31 ; (1988) 165 CLR 19 at 26-28.
Case: Murphy v Farmer [1988] HCA 31 ; (1988) 165 CLR 19
Outcome: referred to
I have not overlooked the view I expressed above that, for the purposes of s 9(6) and s 46A(2A) of the Act, the determination in writing of the Minister and of the CEO of the ACC respectively must be signified or effected by a signature or other mark of the relevant natural person. It is generally expected that the same expression in different provisions of an enactment will bear the same meaning: see e.g. per Mason J in Registrar of Titles of the State of Western Australia v Franzon [1975] HCA 41 ; (1975) 132 CLR 611 at 618. What s 7C(3) requires to constitute a determination in writing by the Board must however be ascertained having regard to the purposes of that particular provision, and the absence of any legislative prescription other than s 7G as to how the Board may do so, and the absence of any provision for the Board to have a common seal. In the circumstances, I do not think my conclusion reflects any inconsistency in the use of the requirement of a determination in writing in the provisions of the Act. In any event, the approach to construction requiring such consistency is not required to be applied inevitably but in the light of the relevant provisions: per Gibbs CJ in McGraw-Hinds (Aust) Pty Ltd v Smith [1979] HCA 19 ; (1978) 144 CLR 633 at 643; and per Deane, Dawson and Gaudron JJ in Murphy v Farmer [1988] HCA 31 ; (1988) 165 CLR 19 at 26-28.
Case: Hogan v Australian Crime Commission (2005) 154 A Crim R 336
Outcome: cited
I note in that regard that, as counsel for the applicants pointed out, there are several earlier decisions of this Court concerning the Money Laundering and Tax Fraud Determination, in which the determination is described as having been made on 15 May 2003 ( Hogan v Australian Crime Commission (2005) 154 A Crim R 336; S v Australian Crime Commission (2005) 114 FCR 431; S v Australian Crime Commission [2006] FCAFC 5 ; (2006) 149 FCR 361; P v Board of the Australian Crime Commission [2006] FCAFC 54 ; (2006) 151 FCR 114). No issue was apparently raised by the respective applicants in those earlier proceedings regarding the date on which the determination was made. That may reflect the view that the determination in writing of the Board was perfected by the Chair's authentication of the relevant resolution.
Case: S v Australian Crime Commission [2006] FCAFC 5 ; (2006) 149 FCR 361
Outcome: cited
I note in that regard that, as counsel for the applicants pointed out, there are several earlier decisions of this Court concerning the Money Laundering and Tax Fraud Determination, in which the determination is described as having been made on 15 May 2003 ( Hogan v Australian Crime Commission (2005) 154 A Crim R 336; S v Australian Crime Commission (2005) 114 FCR 431; S v Australian Crime Commission [2006] FCAFC 5 ; (2006) 149 FCR 361; P v Board of the Australian Crime Commission [2006] FCAFC 54 ; (2006) 151 FCR 114). No issue was apparently raised by the respective applicants in those earlier proceedings regarding the date on which the determination was made. That may reflect the view that the determination in writing of the Board was perfected by the Chair's authentication of the relevant resolution.
Case: P v Board of the Australian Crime Commission [2006] FCAFC 54 ; (2006) 151 FCR 114
Outcome: cited
I note in that regard that, as counsel for the applicants pointed out, there are several earlier decisions of this Court concerning the Money Laundering and Tax Fraud Determination, in which the determination is described as having been made on 15 May 2003 ( Hogan v Australian Crime Commission (2005) 154 A Crim R 336; S v Australian Crime Commission (2005) 114 FCR 431; S v Australian Crime Commission [2006] FCAFC 5 ; (2006) 149 FCR 361; P v Board of the Australian Crime Commission [2006] FCAFC 54 ; (2006) 151 FCR 114). No issue was apparently raised by the respective applicants in those earlier proceedings regarding the date on which the determination was made. That may reflect the view that the determination in writing of the Board was perfected by the Chair's authentication of the relevant resolution.
Case: Plaintiff S157/2002 v The Commonwealth [2003] HCA 2 ; (2003) 211 CLR 476
Outcome: referred to
The parties are agreed that s 7C imposes necessary procedures upon the exercise of the function of the Board to determine that an investigation is a special investigation. Consequently, it was accepted that notwithstanding s 16, if the Board had not complied with those prescribed procedures, it had no jurisdiction to make the determination in the terms of the instrument: see Plaintiff S157/2002 v The Commonwealth [2003] HCA 2 ; (2003) 211 CLR 476. 51 It is also strictly unnecessary to consider whether the privative clause in s 16 of the Act would prevent the applicants from challenging the validity of the warrants on the ground that they did not comply with s 22 of the Act. I have rejected their primary contention based on s 22. Section 16 purports to protect any "act or thing done by the ACC" from review on the ground that a determination under s 7C(3) was not lawfully made. Argument on this point focussed on whether the "act or thing" being challenged was an "act or thing done by the ACC", or an act or thing done by the issuing officer (who, it was agreed, is not part of the ACC). However, in relation to this argument, in any event, s 16 is apparently inapplicable because the particular complaint that the material provided to the issuing officer was inadequate is not necessarily premised on the proposition that the determination itself was not lawfully made. I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield. Associate: Dated: 22 January 2007 Counsel for the Applicant: ML Abbott QC and CD Bleby Solicitor for the Applicant: Patsouris &amp; Associates Counsel for the Respondent: SJ Maharaj QC and R Prince Solicitor for the Respondent: Australian Crime Commission Date of Hearing: 15 November 2006 Date of Judgment: 25 January 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/16.html
Case: Airservices Australia v Jeppesen Sanderson Inc [2006] FCA 906
Outcome: referred to
party referred me to a number of cases which discuss the relevant principles. The respondents emphasised statements to the effect that the Court's power to order that the costs of an interlocutory proceeding be paid forthwith is exercised only in very special circumstances ( Vasyli v AOL International Pty Ltd (unreported, Lehane J, 2 September 1996)). The applicants referred to statements in the authorities to the effect that the power to order that the costs of an interlocutory proceeding be paid forthwith should be used less sparingly than it has in the past ( Airservices Australia v Jeppesen Sanderson Inc [2006] FCA 906 at [31] per Graham J).
Case: Australian Securities and Investments Commission v Mining Projects Group Ltd (No 3) [2008] FCA 952
Outcome: referred to
addition to the authorities which I have mentioned, I refer to Spotwire Pty Ltd v Visa International Service Association (No 2) [2004] FCA 571 at [103] - [109] per Bennett J; IO Group Inc v Prestige Club Australasia Pty Ltd [2008] FCA 1147 at [20] - [25] per Flick J; McKellar v Container Terminal Management Services Ltd [1999] FCA 1639 at [13] - [20] , [24], [41] per Weinberg J; Australian Securities and Investments Commission v Mining Projects Group Ltd (No 3) [2008] FCA 952 at [24] per Gordon J; and Jianshe Southern Pty Ltd v Cooktown Pty Ltd (No 2) [2007] FCA 903 at [35] .
Case: Heslop v Metcalfe [1837] EngR 1161 ; (1837) 3 My &amp; Cr 183 ; 40 ER 894
Outcome: discussed
position is different where it is the solicitor who brings his retainer to an end. In that case, it is said in the authorities that the general rule is that the solicitor will be required to produce the client's papers upon an undertaking that they be returned to the solicitor upon the completion of the proceeding. The rationale for the general rule was explained by Lord Cottenham LC in Heslop v Metcalfe [1837] EngR 1161 ; (1837) 3 My &amp; Cr 183 at 188-9; [1837] EngR 1161 ; 40 ER 894 at 896-897: "Undoubtedly, that doctrine may expose a solicitor to very great inconvenience and hardship, if, after embarking in a cause, he finds that he cannot get the necessary funds wherewith to carry it on. But, on the other hand, extreme hardship might arise to the client, if&#8212;to take the case which is not uncommon in the smaller practice in the country&#8212;a solicitor, who finds a poor man having a good claim, and having but a small sum of money at his command, may go on until that fund is exhausted, and then, refusing to proceed further, may hang up the cause by withholding the papers in his hands. That would be a great grievance and means of oppression to a poor client, who, with the clearest right in the world, might still be without the means of employing another solicitor. The rule of the Court must be adapted to every case that may occur, and be calculated to protect suitors against such conduct. Now, a solicitor, if he knows that he must trust to the result of the cause for his remuneration will, of course, be disposed to proceed with it in such a way as, while it promotes the interest of his client, is most likely to render his lien available. I have no doubt, therefore, that the existence of the lien, while it is a great protection to the solicitor against his client, is also a great benefit to the client; but the benefit would be entirely lost, if the solicitor might stop short in the middle of the suit, and insist upon retaining the papers, because then no other solicitor could take up and carry on the cause." This general rule is subject to an exception, but the precise boundaries of the exception have not been clearly identified in the authorities.
Case: In the Matter of an Application by Weedman (unreported, Drummond J, 17 December 1996)
Outcome: referred to
refer also to the discussion of the general principles by Drummond J in In the Matter of an Application by Weedman (unreported, Drummond J, 17 December 1996) and by Keane JA in Stark v Dennett [2008] 2 Qd R 72.
Case: IO Group Inc v Prestige Club Australasia Pty Ltd [2008] FCA 1147
Outcome: referred to
addition to the authorities which I have mentioned, I refer to Spotwire Pty Ltd v Visa International Service Association (No 2) [2004] FCA 571 at [103] - [109] per Bennett J; IO Group Inc v Prestige Club Australasia Pty Ltd [2008] FCA 1147 at [20] - [25] per Flick J; McKellar v Container Terminal Management Services Ltd [1999] FCA 1639 at [13] - [20] , [24], [41] per Weinberg J; Australian Securities and Investments Commission v Mining Projects Group Ltd (No 3) [2008] FCA 952 at [24] per Gordon J; and Jianshe Southern Pty Ltd v Cooktown Pty Ltd (No 2) [2007] FCA 903 at [35] .
Case: Jianshe Southern Pty Ltd v Cooktown Pty Ltd (No 2) [2007] FCA 903
Outcome: referred to
addition to the authorities which I have mentioned, I refer to Spotwire Pty Ltd v Visa International Service Association (No 2) [2004] FCA 571 at [103] - [109] per Bennett J; IO Group Inc v Prestige Club Australasia Pty Ltd [2008] FCA 1147 at [20] - [25] per Flick J; McKellar v Container Terminal Management Services Ltd [1999] FCA 1639 at [13] - [20] , [24], [41] per Weinberg J; Australian Securities and Investments Commission v Mining Projects Group Ltd (No 3) [2008] FCA 952 at [24] per Gordon J; and Jianshe Southern Pty Ltd v Cooktown Pty Ltd (No 2) [2007] FCA 903 at [35] .
Case: McKellar v Container Terminal Management Services Ltd [1999] FCA 1639
Outcome: referred to
addition to the authorities which I have mentioned, I refer to Spotwire Pty Ltd v Visa International Service Association (No 2) [2004] FCA 571 at [103] - [109] per Bennett J; IO Group Inc v Prestige Club Australasia Pty Ltd [2008] FCA 1147 at [20] - [25] per Flick J; McKellar v Container Terminal Management Services Ltd [1999] FCA 1639 at [13] - [20] , [24], [41] per Weinberg J; Australian Securities and Investments Commission v Mining Projects Group Ltd (No 3) [2008] FCA 952 at [24] per Gordon J; and Jianshe Southern Pty Ltd v Cooktown Pty Ltd (No 2) [2007] FCA 903 at [35] .
Case: Rafferty v Time 2000 West Pty Ltd [2008] FCA 1925
Outcome: referred to
following summary is, for the most part, taken from my reasons for an earlier judgment I delivered in this proceeding: Rafferty v Time 2000 West Pty Ltd [2008] FCA 1925. The applicants in this proceeding are Mr Patrick Campbell Rafferty, Santora Holdings Pty Limited ("Santora") and Karaville Holdings Pty Limited ("Karaville"). Santora is a wholly-owned subsidiary of Karaville and Mr Rafferty and his wife own all of the issued shares in Karaville. The respondents in the proceeding are Time 2000 West Pty Limited ("T2W"), Time 2000 Systems (Australia) Pty Limited ("T2S"), Time 2000 Operations (Australia) Pty Limited ("T2O"), Embleton Limited (a company incorporated in Hong Kong) ("Embleton") and Mr Stephen Gerard Donovan. On 17 December 2008, I made an order that the application of the respondents for an order transferring this proceeding to the Victoria District Registry be refused. I further ordered that the costs of the respondents' notice of motion be reserved to the next directions hearing ( Rafferty v Time 2000 West Pty Ltd [2008] FCA 1925). On the same day, I decided that it was appropriate to make the freezing orders sought by the applicants ( Rafferty v Time 2000 West Pty Ltd (No 2) [2008] FCA 1931) and those orders were made on 19 December 2008.
Case: Rafferty v Time 2000 West Pty Ltd (No 2) [2008] FCA 1931 
Outcome: referred to
17 December 2008, I made an order that the application of the respondents for an order transferring this proceeding to the Victoria District Registry be refused. I further ordered that the costs of the respondents' notice of motion be reserved to the next directions hearing ( Rafferty v Time 2000 West Pty Ltd [2008] FCA 1925). On the same day, I decided that it was appropriate to make the freezing orders sought by the applicants ( Rafferty v Time 2000 West Pty Ltd (No 2) [2008] FCA 1931) and those orders were made on 19 December 2008.
Case: Robins v Goldingham (1872) 13 LR Eq 440
Outcome: discussed
exercise of the jurisdiction depends on a number of considerations. The principal one appears to be whether it was the client who terminated the retainer or the solicitor who terminated his retainer. In Robins v Goldingham (1872) 13 LR Eq 440, Malins V-C said (at 442): "Now it is well settled that where a solicitor is discharged by the client he has a lien for his costs upon the papers in his hands, and can retain them till he is satisfied; but it is different where the discharge is by the solicitor. There is no blame to be imputed to Mr. Suckling for declining to go on with the suit; but it is clear that a solicitor is not entitled to stop litigation, because he cannot obtain funds to enable him to carry it on. There is no injustice in this view, because when the papers are in the hands of the new solicitor, Mr. Suckling will retain any lien to which he is entitled." The question of determining the party who terminated the retainer is approached as a matter of substance, not form. In other words, it may be that, although it is the client who has formally terminated the retainer of his solicitor, he has been compelled to do so by the solicitor's misconduct. In that case, a court will have regard to the solicitor's misconduct and not confine itself to the fact, as a matter of form, that the client terminated the retainer. Assuming no misconduct by the solicitor, the general rule is that, where the client terminates the retainer of his solicitor then the Court will not exercise the power to order that the solicitor produce his client's papers. The interest in the client having his papers for the purpose of conducting an existing proceeding is outweighed by the unfairness to the solicitor (or possibly a number of solicitors) in having to give up his lien in circumstances where, without any just or reasonable cause, the client has terminated his instructions and retained a new firm of solicitors.
Case: Spotwire Pty Ltd v Visa International Service Association (No 2) [2004] FCA 571
Outcome: referred to
addition to the authorities which I have mentioned, I refer to Spotwire Pty Ltd v Visa International Service Association (No 2) [2004] FCA 571 at [103] - [109] per Bennett J; IO Group Inc v Prestige Club Australasia Pty Ltd [2008] FCA 1147 at [20] - [25] per Flick J; McKellar v Container Terminal Management Services Ltd [1999] FCA 1639 at [13] - [20] , [24], [41] per Weinberg J; Australian Securities and Investments Commission v Mining Projects Group Ltd (No 3) [2008] FCA 952 at [24] per Gordon J; and Jianshe Southern Pty Ltd v Cooktown Pty Ltd (No 2) [2007] FCA 903 at [35] .
Case: Starke v Dennett [2008] 2 Qd R 72
Outcome: referred to
refer also to the discussion of the general principles by Drummond J in In the Matter of an Application by Weedman (unreported, Drummond J, 17 December 1996) and by Keane JA in Stark v Dennett [2008] 2 Qd R 72.
Case: Time 2000 Systems (Australia) Pty Ltd ACN 127 853 614 v Rafferty [2009] FCA 216
Outcome: referred to
applicant applied for leave to appeal from the freezing orders that I made. The application for leave to appeal was heard by Lander J, who, on 4 March 2009, refused the application ( Time 2000 Systems (Australia) Pty Ltd ACN 127 853 614 v Rafferty [2009] FCA 216). I held a directions hearing on 20 May 2009. On that occasion, I made the following orders, relevantly: "1. Each party is to file the affidavits containing the evidence in chief on which it or he intends to rely at the trial on or before 4pm on Wednesday, 17 June 2009. 2. The trial be set down for Monday, 6 July 2009 at 10am (5 days set aside)." The respondents issued a notice of motion on 17 June 2009, seeking a number of orders. First, they sought an order that they have leave to file an amended defence and a cross-claim against the applicants. There was no existing cross-claim against the applicants. Secondly, they sought an order that Madgwicks (a firm) be joined as an additional cross-respondent to the proceeding and that they have leave to issue and serve a cross-claim against Madgwicks. Thirdly, they sought an order that Madgwicks produce the papers which the firm holds. The precise terms of the order sought against Madgwicks are set out in [26] below. Fourthly, they sought an order that the time within which they were permitted to file the evidence in chief on which they intend to rely at the trial be extended. Finally, they sought an order that the trial date be vacated.
Case: Vasyli v AOL International Pty Ltd (unreported, Lehane J, 2 September 1996)
Outcome: referred to
party referred me to a number of cases which discuss the relevant principles. The respondents emphasised statements to the effect that the Court's power to order that the costs of an interlocutory proceeding be paid forthwith is exercised only in very special circumstances ( Vasyli v AOL International Pty Ltd (unreported, Lehane J, 2 September 1996)). The applicants referred to statements in the authorities to the effect that the power to order that the costs of an interlocutory proceeding be paid forthwith should be used less sparingly than it has in the past ( Airservices Australia v Jeppesen Sanderson Inc [2006] FCA 906 at [31] per Graham J).
Case: Applicant M47/2004 v Minister for Immigration and Multicultural Affairs [2006] FCA 176 
Outcome: followed
In relation to the third ground of appeal, the first respondent submits that there was no error in the Federal Magistrate's decision, as the appellants were provided with a s 424A letter. The first respondent submits that, in any case, on a joint application such as this one, information provided by one joint applicant need not be provided to other joint applicants: Applicant M47/2004 v Minister for Immigration and Multicultural Affairs [2006] FCA 176 ; SZHTL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1052. 31 Finally, in relation to ground 3, I accept that although it is unnecessary for the evidence of one appellant to be put to another when two appellants submit a joint application for review to the Tribunal (ss 424A(1) and (3)(b); Applicant M47/2004 [2006] FCA 176 ; SZHTL [2006] FCA 1052) , that in any event, the Tribunal put any inconsistencies between the appellants' evidence that it relied upon to the appellants in the letter it sent to them on 20 October 2005. I have identified the matters contained in the letter earlier in these reasons. This third ground of appeal also fails.