mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Murphy v Doman [2003] NSWCA 249 ; (2003) 58 NSWLR 51
Outcome: applied
is a principle of long standing that the law presumes every person to be sane and, in modern times, the principle has been expressed as a presumption that a person of full age is capable of managing his or her affairs: Murphy v Doman [2003] NSWCA 249 ; (2003) 58 NSWLR 51 at [36] per Handley JA. It follows that the person who asserts incapacity must prove it. However, that is not to say that the burden may not be discharged in other ways. One way in which that burden might be discharged is by establishing Ms Cross' incapacity at some other point in time and inviting the Court to infer that Ms Cross' state of capacity had remained unchanged between the time of such proven incapacity and the time of service of the Creditor's petition. A similar course was taken in Murphy v Doman [2003] NSWCA 249 ; (2003) 58 NSWLR 51. That case concerned a litigant in person who suffered the effects of mental illness during the course of the proceedings. He was required to file written submissions by a certain date, which was extended. At the expiration of the extended period he appeared before the court and behaved in a bizarre manner, refusing to tender the submissions he had brought that day (6 August 2001). On 18 September the matter was listed for judgment and that morning the trial judge received a letter from Mr Murphy explaining that he had been admitted to a psychiatric hospital shortly after 6 August and asking for leave to file and serve his submissions.
Case: White v Fell (Court of Appeal, unreported, 12 November 1987, Boreham J)
Outcome: applied
of the members of the Court of Appeal endorsed the approach taken by Boreham J in the unreported case of White v Fell , 12 November 1987, where the issue of incapacity arose in the context of the limitation of actions. In that case his Honour observed: 'The expression "incapable of managing her own affairs and property" must be construed in a common sense way as a whole. It does not call for proof of complete incapacity. On the other hand, it is not enough to prove that the plaintiff is now substantially less capable of managing her own affairs and property than she would have been had the accident not occurred. I have no doubt that the plaintiff is quite incapable of managing unaided a large sum of money such as the sort of sum that would be appropriate compensation for her injuries. That, however, is not conclusive. Few people have the capacity to manage all their affairs unaided ... It may be that she would have chosen, and would choose now, not to take advice, but that is not the question. The question is: is she capable of doing so? To have that capacity she requires first the insight and understanding of the fact that she has a problem in respect of which she needs advice ... Secondly, having identified the problem, it will be necessary for her to seek an appropriate adviser and to instruct him with sufficient clarity to enable him to understand the problem and to advise her appropriately ... Finally, she needs sufficient mental capacity to understand and to make decisions based upon, or otherwise give effect to, such advice as she may receive .' (Emphasis added)
Case: Applicant M164/2002 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2006] FCAFC 16
Outcome: followed
The judgment of the Full Court in SZEEU does not support a narrow construction of s 424A. It does not, in my view, throw doubt on the approach taken later by Lee J, with whom Tamberlin J agreed, in Applicant M164/2002 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2006] FCAFC 16. In that case both the appellant and her husband indicated a wish to give evidence to the Tribunal. The Tribunal characterised the husband's evidence as 'significantly discrepant' from the appellant's evidence on an important issue. Lee J at [99] said that, if the Tribunal relied on the alleged discrepancy as the reason or part of the reason, for its decision, it was bound to comply with s 424A(1). 21 Although the observations of Lee J in Applicant M164/2002 were obiter , I do not accept that his Honour made them per incuriam . His Honour set out in his reasons for judgment the terms of s 424A in their entirety. Nor do I accept that Tamberlin J may have overlooked Lee J's observations and should be understood still to hold views expressed by him prior to the publication of SAAP v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162 in WABY v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2002] FCA 1091. Both Lee and Tamberlin JJ must be assumed to have read the reasons for judgment of Dowsett J who, in dissent, held that s 424A had no application because the evidence of the appellant's husband was evidence put before the Tribunal by the appellant and thus information that the appellant gave for the purpose of the application.
Case: SAAP v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162
Outcome: cited
Although the observations of Lee J in Applicant M164/2002 were obiter , I do not accept that his Honour made them per incuriam . His Honour set out in his reasons for judgment the terms of s 424A in their entirety. Nor do I accept that Tamberlin J may have overlooked Lee J's observations and should be understood still to hold views expressed by him prior to the publication of SAAP v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162 in WABY v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2002] FCA 1091. Both Lee and Tamberlin JJ must be assumed to have read the reasons for judgment of Dowsett J who, in dissent, held that s 424A had no application because the evidence of the appellant's husband was evidence put before the Tribunal by the appellant and thus information that the appellant gave for the purpose of the application. 27 As mentioned above, a reason, or a part of the reason, for the Tribunal's decision that the appellant is not entitled to a protection visa was that the applicant's father had been allowed by the Vietnamese authorities to return to the community and operate a small private business. The Tribunal, as I have found, did not comply with s 424A in respect of this information. Its decision is thus invalid ( SAAP ). 28 The appeal will be allowed and the orders of the Federal Magistrates Court will be set aside. In lieu thereof it will be ordered that the decision of the Tribunal be quashed and the appellant's application for a protection visa be remitted to the Tribunal to be determined according to law. The first respondent will be ordered to pay the appellant's costs thus giving his counsel an entitlement to recover fees and disbursements (O 80 r 9(2)). I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson. Associate: Dated: 13 June 2006 Counsel for the Appellant: Mr M Leeming and Ms K Dawson Solicitor for the Appellant: Ebsworth &amp; Ebsworth Counsel for the First Respondent: Mr P Braham Solicitor for the First Respondent: Blake Dawson Waldron The Second Respondent filed a submitting appearance. Date of Hearing: 3 May 2005, 14 June 2005, 11 August 2005 and 16 September 2005 Date of Final Submissions: 29 May 2006 Date of Judgment: 13 June 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/733.html
Case: SZEEU v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2006] FCAFC 2
Outcome: considered
The appellant was represented at the hearing of his appeal by counsel appointed under O 80 of the Federal Court Rules . Judgment on the appeal has been delayed pending the publication of the Full Court judgments in SZEEU v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2006] FCAFC 2 and NBGM v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2006] FCAFC 60. I now have supplementary written submissions from the parties concerning these judgments. 20 The judgment of the Full Court in SZEEU does not support a narrow construction of s 424A. It does not, in my view, throw doubt on the approach taken later by Lee J, with whom Tamberlin J agreed, in Applicant M164/2002 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2006] FCAFC 16. In that case both the appellant and her husband indicated a wish to give evidence to the Tribunal. The Tribunal characterised the husband's evidence as 'significantly discrepant' from the appellant's evidence on an important issue. Lee J at [99] said that, if the Tribunal relied on the alleged discrepancy as the reason or part of the reason, for its decision, it was bound to comply with s 424A(1).
Case: WABY v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2002] FCA 1091
Outcome: referred to
Although the observations of Lee J in Applicant M164/2002 were obiter , I do not accept that his Honour made them per incuriam . His Honour set out in his reasons for judgment the terms of s 424A in their entirety. Nor do I accept that Tamberlin J may have overlooked Lee J's observations and should be understood still to hold views expressed by him prior to the publication of SAAP v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162 in WABY v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2002] FCA 1091. Both Lee and Tamberlin JJ must be assumed to have read the reasons for judgment of Dowsett J who, in dissent, held that s 424A had no application because the evidence of the appellant's husband was evidence put before the Tribunal by the appellant and thus information that the appellant gave for the purpose of the application.
Case: Re APN News &amp; Media Ltd [2007] FCA 770 ; (2007) 62 ACSR 400
Outcome: referred to
evidence of the consideration given by the ERC's Board to the constraints sought by the bidder is generally in accordance with the approach that I discussed in Re APN News &amp; Media Ltd [2007] FCA 770 ; (2007) 62 ACSR 400 ( APN ) at [55]. Warranty of freedom from encumbrances Clause 8.3(a) of the Scheme provides that the Scheme Participants are deemed to have warranted to ERC in its own right and on behalf of ECC that they have full power and capacity to sell and to transfer the Scheme Shares to ECC, and that their ERC shares are transferred fully paid and free from all mortgages, liens, charges, pledges, and other interests or restrictions on transfer of any kind. Clause 13.14 of the Scheme Booklet draws attention to this warranty. The warranty of freedom from encumbrances is consistent with the approach taken in APN at [59]-[62], which was followed by Barrett J in Macquarie Private Capital A Limited [2008] NSWSC 323 ; (2008) 26 ACLC 366 at [13] - [14] . Verification The $4 million break fee represents: (a) 1.9% of the equity value of ERC as at 14 September 2009, being the date when the bid was announced to the market. This percentage has been determined in accordance with para 7.17 of the Takeovers Panel's Guidance Note 7: Lock-up Devices , which I discussed in APN at [55]. The calculation was: $4,000,000 &#247; (167,904,914 ERC shares x the closing price of ERC shares of $1.27 as at 14 September 2009) x 100 (b) 4.4% of the total value of the proposal determined in accordance with the principles set out in APN as follows: $4,000,000 &#247; (167,904,914 ERC shares x the total consideration offered under the proposal being $0.545 per ERC share) x 100 (c) 0.06% of the enterprise value of ERC as set out in the consolidated pro forma balance sheet at s 10.5(e) of the Scheme Booklet. The "total consideration offered under the proposal" referred to in (b) above is arrived at by adding to the Cash Consideration of $0.40 per ERC share, the Capital Reduction Amount of $0.145 per ERC share. In relation to (c) above, it is to be noted that in its Guidance Note 7: Lock up Devices , the Takeovers Panel stated (at para 7.21): In some limited cases, the Panel accepts that it may be appropriate for the 1% guideline to apply to a company's enterprise value rather than equity value, because for instance, the target is highly geared . In such a case, as with every fee in excess of 1% of equity value, a party seeking to justify the fee must be prepared to show that the fee does not have an anti-competitive or coercive effect. [Emphasis added] The "enterprise value of ERC" referred to in [45](c) above was arrived at as described at [49] below.
Case: Re Ausdoc Group Ltd (2002) 42 ACSR 629
Outcome: referred to
note that in Re Ausdoc Group Ltd (2002) 42 ACSR 629 ( Ausdoc ) the Takeovers Panel found that a break fee of $3.5 million, that was 1.86% of the equity value and 1.1% of the enterprise value of the target company, was unobjectionable in the circumstances of that case. Those circumstances included the facts that: a six-month tender process had been conducted by the target company before it entered into the scheme implementation deed, yet no other bids had emerged; the bidder had made it clear to the board of the target company that it would not bid unless, relevantly, the break fee provision was agreed to; and the bid would give a substantial premium to the target company's shareholders. While each case turns on its own facts and, in any event, I must make my own assessment, it is nonetheless noteworthy that there are some similarities between the circumstances of Ausdoc and those of the present case. In this case, I concluded that the existence of the provision for payment of a break fee of nearly twice the "1% of the equity value of the target" should not, in the unusual circumstances, stand in the way of the making of an order for the convening of a meeting at which the proposed Scheme can be considered and voted upon by Scheme Participants. It was for the above reasons that I made the orders on 9 November 2009 referred to at the outset of these reasons for judgment. I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren. Associate: Dated: 1 December 2009 Counsel for the Plaintiff: Mr T F Bathurst QC Solicitor for the Plaintiff: Gilbert &amp; Tobin Counsel for Emerald Communications (Cayman) SPC: Mr K Andronos Solicitor for Emerald Communications (Cayman) SPC: Mallesons Stephen Jaques Date of Hearing: 9 November 2009 Date of Judgment: 9 November 2009 Date of Publication of Reasons: 1 December 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/1418.html
Case: Macquarie Private Capital A Limited [2008] NSWSC 323 ; (2008) 26 ACLC 366
Outcome: cited
warranty of freedom from encumbrances is consistent with the approach taken in APN at [59]-[62], which was followed by Barrett J in Macquarie Private Capital A Limited [2008] NSWSC 323 ; (2008) 26 ACLC 366 at [13] - [14] . Verification
Case: Kortz Ltd v Data Acquisition Pty Ltd [2006] FCA 1722
Outcome: cited
The defendant, apart from responding to all three grounds relied upon by the plaintiff, also contended that the plaintiff had failed to comply with s 459G(3) of the Act, compliance with which goes to jurisdiction. The defendant contended that as a result, the jurisdiction of the court had not been enlivened and the court could not make an order setting aside the demand either pursuant to s 459H(3) or s 459J(1)(a) or (b). The merits of that contention are dealt with at [16] to [37] of the reasons for judgment ( Kortz Ltd v Data Acquisition Pty Ltd [2006] FCA 1722). 8 I have had the benefit of receiving and considering submissions from both the plaintiff and the defendant in relation to the principles governing the exercise of the discretion as to costs in the light of the judgment and urging the exercise of the discretion in a particular way. 9 Since the plaintiff failed to establish the first two grounds of challenge to the statutory demand and the defendant was unsuccessful in relation to the contention going to s 459G(3) , the final question to be determined was whether the plaintiff's material adequately demonstrated the subsistence of a genuine dispute between the parties as to the existence or amount of a debt to which the demand related.
Case: Luna Park Sydney Pty Limited v Bose [2006] FCA 94
Outcome: cited
Until O 35A was introduced into the FCR in 2004, it was not open to the Court to make an order for a default judgment, except on a motion supported by evidence as to the merits of the application: Luna Park Sydney Pty Limited v Bose [2006] FCA 94 , at [17], per Jacobson J and cases cited there. However, O 35A r 3(2)(c) permits the Court to grant relief if: &#8226; a respondent is in default; &#8226; the applicant appears entitled to the relief 'on the statement of claim'; and &#8226; the Court is satisfied that it has power to grant the relief.
Case: Wu v Avin Operations Pty Ltd [2006] FCA 36
Outcome: cited
Order 35A has been interpreted as dispensing with the invariable requirement that the applicant prove by evidence that the pleaded claim is well-founded. In Wu v Avin Operations Pty Ltd [2006] FCA 36 , Kenny J (at [57]) said this: 'Under the former O 10 r 7, an applicant was required to file proof by way of evidence of his or her claims when seeking judgment ... Under the new O 35A r 3, it now seems that reliance may be placed on the allegations in the relevant statement of claim. Judges of the Court have held that the rule does not require proof by way of evidence of the applicant's claim, but that on the face of the statement of claim there is a claim for the relief sought and that the court has jurisdiction to grant that relief: see Arthur v Vaupotic Investments Pty Ltd [2005] FCA 433 , at [3], per Heerey J; Australian Competition and Consumer Commission v 1 CellNet LLC [2005] FCA 856 , at [14], per Nicholson J; Australian Competition and Consumer Commission v Albert [2005] FCA 1311 , at [6]-[7], per Jackson J and Deisel Spa v Hwang [2005] FCA 1619 , at [2], per Tamberlin J.'
Case: Arthur v Vaupotic Investments Pty Ltd [2005] FCA 433
Outcome: cited
Order 35A has been interpreted as dispensing with the invariable requirement that the applicant prove by evidence that the pleaded claim is well-founded. In Wu v Avin Operations Pty Ltd [2006] FCA 36 , Kenny J (at [57]) said this: 'Under the former O 10 r 7, an applicant was required to file proof by way of evidence of his or her claims when seeking judgment ... Under the new O 35A r 3, it now seems that reliance may be placed on the allegations in the relevant statement of claim. Judges of the Court have held that the rule does not require proof by way of evidence of the applicant's claim, but that on the face of the statement of claim there is a claim for the relief sought and that the court has jurisdiction to grant that relief: see Arthur v Vaupotic Investments Pty Ltd [2005] FCA 433 , at [3], per Heerey J; Australian Competition and Consumer Commission v 1 CellNet LLC [2005] FCA 856 , at [14], per Nicholson J; Australian Competition and Consumer Commission v Albert [2005] FCA 1311 , at [6]-[7], per Jackson J and Deisel Spa v Hwang [2005] FCA 1619 , at [2], per Tamberlin J.' 9 In the present case, as I have noted, the relief sought by the applicants includes restraining orders against the respondent. Order 35A r 3 has been applied where an applicant seeks relief of this kind (as distinct, for example, from damages), in consequence of default by a respondent: Arthur v Vaupotic Investments Pty Ltd [2005] FCA 433. 10 For myself, I am inclined to think that some caution should be exercised before granting default relief of the kind sought in this case simply on the basis of the pleadings. In particular, the sanctions that can be invoked where a respondent contravenes a restraining order should be borne in mind. Order 35A r 3 vests a discretion in the Court. Depending on the circumstances, it may be appropriate for the Court to require some evidence, for example, that the respondent has infringed an applicant's copyright as alleged in the statement of claim before making restraining orders or orders requiring a respondent to deliver up on oath infringing copies of copyright material (as the applicants seek here). 11 In the present case, Mr Cobden SC, who appeared with Ms Richardson for the applicants, read a number of affidavits in support of the motion. These satisfy me that the respondent has infringed the copyright of the various applicants in the identified films by selling or offering for sale DVDs that constitute copies of the films. The evidence also satisfies me that, unless restrained, the respondent is likely to continue his infringing activities. The evidence also supports the other relief sought by the applicants. There is therefore no need to consider whether it would have been appropriate, in the absence of such evidence, to grant the restraining orders sought by the applicants on the basis of the pleadings alone.
Case: Chappell &amp; Co Ltd v Associated Radio Co of Australia Ltd [1925] VLR 350
Outcome: cited
The restraining orders the applicants seek have been carefully drawn and follow the form approved by the Full Court of the Supreme Court of Victoria in Chappell &amp; Co Ltd v Associated Radio Co of Australia Ltd [1925] VLR 350, at 362-363. Indeed, the orders proposed in the present case are somewhat narrower than those made in Chappell v Associated Radio . 13 In summary, I am satisfied that: &#8226; the respondent is in default for the purposes of O 35A r 3(2); &#8226; each of the applicants appears entitled to relief in the form of restraining orders on the statement of claim; &#8226; the Court has power to grant the relief sought; and &#8226; it is appropriate for the Court to exercise its discretion so as to make the orders sought. 14 Accordingly, I propose to make the orders sought by the applicants in the motion. These include restraining orders, an order for delivery up on oath of the infringing copies of the applicants' films and an inquiry as to damages. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville. Associate: Dated: 9 June 2006 Counsel for the Applicants: Mr R Cobden SC with Ms K Richardson Solicitor for the Applicants: Minter Ellison There was no appearance by the Respondent Date of Hearing: 8 June 2006 Date of Judgment: 9 June 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/727.html