mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Australian Securities Commission v AS Nominees Ltd [1995] FCA 1663 ; (1995) 62 FCR 504
Outcome: followed
Australian Securities Commission v AS Nominees Ltd [1995] FCA 1663 ; (1995) 62 FCR 504 at 531-532 Finn J highlighted that, at the behest of a public official or agency, the public interest might warrant the winding up of a company on the just and equitable ground; a proposition later accepted by Lander J in Australian Securities and Investments Commission v International Unity Insurance Pty Ltd [2004] FCA 1059 ; (2004) 22 ACLC 1416 at [135] . I, too, accept this proposition. Its correctness seems to me to follow inexorably from the standing granted to ASIC in the circumstances described in s 462(2)(e) and s 464(1). There will be occasions and this is one where, in the course of an investigation, matters come to the attention of ASIC that motivate it to seek the winding up of a company on the just and equitable ground because it is in the public interest and perhaps also on other grounds, notably, insolvency. As noted, the latter requires a grant of leave to ASIC but the conditions for that are met. I grant leave.
Case: Ebrahimi v Westbourne Galleries Ltd [1973] AC 360
Outcome: considered
just and equitable ground is of ancient provenance in corporations law: see Mr B H McPherson (as his Honour then was), Winding Up on the "Just and Equitable Ground" (1964) 27 MLR 282. Notwithstanding a restrictive approach to this ground that prevailed for the latter half of the 19 th century and which persisted in the courts with diminishing support into the first two decades of the 20 th century, by 1924, in Loch v John Blackwood Ltd [1924] AC 783 at 788-789, the Judicial Committee had rejected the notion that the just and equitable ground was to be interpreted ejusdem generis with preceding statutory grounds upon which a winding up order might be made and in some way limited by those grounds. By 1973 in Ebrahimi v Westbourne Galleries Ltd [1973] AC 360 at 374-375 Lord Wilberforce, with the agreement of Viscount Dilhorne, Lord Pearson and Lord Salmon, had emphatically rejected as wrong a tendency His Lordship discerned to create categories or headings under which case must be brought for the just and equitable ground of winding up to apply. As His Lordship stated, "illustrations may be used, but general words should remain general and not be reduced to the sum of particular instances".
Case: Loch v John Blackwood Ltd [1924] AC 783
Outcome: considered
just and equitable ground is of ancient provenance in corporations law: see Mr B H McPherson (as his Honour then was), Winding Up on the "Just and Equitable Ground" (1964) 27 MLR 282. Notwithstanding a restrictive approach to this ground that prevailed for the latter half of the 19 th century and which persisted in the courts with diminishing support into the first two decades of the 20 th century, by 1924, in Loch v John Blackwood Ltd [1924] AC 783 at 788-789, the Judicial Committee had rejected the notion that the just and equitable ground was to be interpreted ejusdem generis with preceding statutory grounds upon which a winding up order might be made and in some way limited by those grounds. By 1973 in Ebrahimi v Westbourne Galleries Ltd [1973] AC 360 at 374-375 Lord Wilberforce, with the agreement of Viscount Dilhorne, Lord Pearson and Lord Salmon, had emphatically rejected as wrong a tendency His Lordship discerned to create categories or headings under which case must be brought for the just and equitable ground of winding up to apply. As His Lordship stated, "illustrations may be used, but general words should remain general and not be reduced to the sum of particular instances".
Case: National Exchange Pty Ltd v Australian Securities and Investments Commission [2004] FCAFC 90 ; (2004) 49 ACSR 369
Outcome: considered
this as it may, it is not correct to describe the DOCA as a "simple solution". Mr and Mrs Cassimatis may believe that but, objectively, that seriously misdescribes not only the contingencies that attend the payment of the DOCA sum either within the maximum time allowed under the DOCA or at all but also the difficulties that will attend recovering monies for the benefit of creditors. There is, in truth, no "simple solution" for the creditors be it by way of acceptance of the DOCA or an immediate winding up. Yet this is the entitlement made in bold type so as to emphasise it to the reader and "simple" is immediately thereunder again emphasised in bold type: cf National Exchange Pty Ltd v Australian Securities and Investments Commission [2004] FCAFC 90 ; (2004) 49 ACSR 369 at 381, [53] per Jacobson and Bennett JJ. Neither, objectively, is it correct to describe the DOCA proposal as "generous". The worth of what is offered under the DOCA is not quantifiable, either relatively or absolutely, for the reasons given by the administrators in their report and by Mr Worrell in his affidavit. That necessarily includes the worth, if any, of the "bonus" for which the DOCA nominally provides. If there is a reasonable basis for Mr and Mrs Cassimatis' "sincere belief" as to the generosity of the DOCA it is not evident to me from the evidence tendered by them. Is it, objectively, on balance, "the best solution for all stakeholders"? Save for two "stakeholders", who are at least arguably omitted from the list of the same in the Information Memorandum, that is a matter which it is not possible objectively to determine. Those two "stakeholders" are Mr and Mrs Cassimatis, each in the capacity of a director of Storm Financial. Acceptance of the DOCA would grant to Mr and Mrs Cassimatis (and to ECA) releases and discharges "from all and any claims, actions, suits, or demands arising out of the dividend payment on 15 December 2008" (cl 29), i.e. the very sum put forward as the DOCA sum. Further, those creditors who join the "Storm Clients Recovery Group", subject to clause 16A, "release and discharge any employee or officer of Storm, unless such person is insured under [any policy of professional indemnity or other insurance]" and agree "collectively to limit such claims to the amount available to such persons under such policies of insurance, or any Insurance Settlement" (cl 16(c)). Directors are not offered such releases by the Act in the event of a liquidation. As to the foregoing identified features of the Information Memorandum, and as was submitted on behalf of ASIC, the following passage from the joint judgement of Jacobson and Bennett JJ in National Exchange [2004] FCAFC 90 ; (2004) 49 ACSR 369 at 381-382, [55] to [58] is relevant by analogy:
Case: Storm Financial Limited ABN 11 064 804 691 v Commonwealth Bank of Australia ABN 48 123 123 124 [2008] FCA 1991
Outcome: considered
and Mrs Cassimatis did point to an interlocutory judgement given by Greenwood J in Storm Financial Limited ABN 11 064 804 691 v Commonwealth Bank of Australia ABN 48 123 123 124 [2008] FCA 1991 in which, at a time before the appointment of the administrators, Storm Financial had sought injunctive relief against the bank in respect of alleged misstatements made by the bank concerning Storm Financial's role in the management of client margin loan facilities. His Honour had stated: For present purposes, I am satisfied by the weight of the applicant's material that had the financial adviser assumed a management responsibility for the margin loan transaction in each case and more particularly a "sole" responsibility for the management of the margin loan account through the period, the documents as between the Bank and Storm and in particular the letter of 18 May 2007 would have said so in clear and transparent terms. Secondly, the documents as between the financial adviser and the client would have reflected that position. Mr Cassimatis says it was not so as a matter of practice. Mr Johnston says it was not so in his experience although his experience concluded in 2003. Mr McCullough also gives evidence consistent with Mr Cassimatis. I am satisfied that solely for interlocutory purposes, Storm has demonstrated a sufficient likelihood of success in terms of Australian Broadcasting Corporation v O'Neill demonstrating that the statement as to sole management of the margin loan accounts and instructions allegedly given in the meeting on 4 December 2008 are capable of being misleading or deceptive or likely to mislead or deceive. Of course, the ultimate position must be tested at trial where the evidence will be closely examined and findings reached on all aspects of the controversy. Later in that judgement (at [49]), his Honour observed in relation to the question of what, if any, were the respective managerial responsibilities for the management of client margin loan accounts as between Storm Financial and the bank that, "The boundaries of that relationship are the core matter in issue in these proceedings" . Just what might be the quantum of damages in that proceeding, if such relief were alternatively sought, was a question left unanswered by Mr and Mrs Cassimatis.
Case: Worrell; In the matter of Storm Financial Limited (Receivers and Managers Appointed) (Administrators Appointed) [2009] FCA 70
Outcome: cited
11 February 2009 and at a time after the Australian Securities and Investments Commission (ASIC) had intervened in the proceeding, on the application of the administrators and for reasons which I then published ( Worrell; In the matter of Storm Financial Limited (Receivers and Managers Appointed) (Administrators Appointed) [2009] FCA 70) I ordered, inter alia : In the result, there was no application for any further extension of the convening period. As a result, the administrators came to give notice for the holding on 23 March 2009 of the creditors' meeting.
Case: Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd [2007] FCAFC 146
Outcome: considered
In support of this submission, Dynamic Supplies referred to the recent decision in Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd [2007] FCAFC 146. In that case, the Full Court at [104] accepted the proposition that injunctions should be granted in clear and unambiguous terms which leave no room for the persons to whom they are directed to wonder whether their conduct falls within the scope of the injunction. This is because failure to comply with the terms of a court order may give rise to contempt proceedings in which determination of questions of construction of the terms of the injunction is not appropriate since ambiguity or uncertainty may be a defence in such proceedings: see ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248 at 259 (per Lockhart J); MacLean v Shell Chemical (Australia) Pty Ltd (1984) 2 FCR 593 at 599 (per Toohey J). Similar remarks were made by a Full Court of this Court in Commodore Business Machines Pty Ltd v Trade Practices Commission (1990) 92 ALR 563 at 574-575, where the Court adopted the principle that injunctive relief should be based upon the specific case alleged and proved against the defendant, and indicate in clear terms the conduct enjoined so that he or she knows what is expected to be done.
Case: Commodore Business Machines Pty Ltd v Trade Practices Commission (1990) 92 ALR 563
Outcome: considered
In support of this submission, Dynamic Supplies referred to the recent decision in Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd [2007] FCAFC 146. In that case, the Full Court at [104] accepted the proposition that injunctions should be granted in clear and unambiguous terms which leave no room for the persons to whom they are directed to wonder whether their conduct falls within the scope of the injunction. This is because failure to comply with the terms of a court order may give rise to contempt proceedings in which determination of questions of construction of the terms of the injunction is not appropriate since ambiguity or uncertainty may be a defence in such proceedings: see ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248 at 259 (per Lockhart J); MacLean v Shell Chemical (Australia) Pty Ltd (1984) 2 FCR 593 at 599 (per Toohey J). Similar remarks were made by a Full Court of this Court in Commodore Business Machines Pty Ltd v Trade Practices Commission (1990) 92 ALR 563 at 574-575, where the Court adopted the principle that injunctive relief should be based upon the specific case alleged and proved against the defendant, and indicate in clear terms the conduct enjoined so that he or she knows what is expected to be done.
Case: ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248
Outcome: cited
In support of this submission, Dynamic Supplies referred to the recent decision in Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd [2007] FCAFC 146. In that case, the Full Court at [104] accepted the proposition that injunctions should be granted in clear and unambiguous terms which leave no room for the persons to whom they are directed to wonder whether their conduct falls within the scope of the injunction. This is because failure to comply with the terms of a court order may give rise to contempt proceedings in which determination of questions of construction of the terms of the injunction is not appropriate since ambiguity or uncertainty may be a defence in such proceedings: see ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248 at 259 (per Lockhart J); MacLean v Shell Chemical (Australia) Pty Ltd (1984) 2 FCR 593 at 599 (per Toohey J). Similar remarks were made by a Full Court of this Court in Commodore Business Machines Pty Ltd v Trade Practices Commission (1990) 92 ALR 563 at 574-575, where the Court adopted the principle that injunctive relief should be based upon the specific case alleged and proved against the defendant, and indicate in clear terms the conduct enjoined so that he or she knows what is expected to be done. 12 As noted by Lockhart J in ICI Australia 38 FCR at 259, it is imperative that restraining orders are precisely formulated because contempt proceedings with serious consequences can flow from a failure to comply with such orders. In the light of this, and having regard to my earlier reasons in this matter, I consider that the words " under or by reference to " proposed by Brother are too extensive in their reach because they are capable of including conduct beyond that in respect of which specific findings have been made. 13 I therefore consider that the orders proposed by Brother are appropriate, with the exception of proposed order 3, for which Dynamic Supplies' proposed order 3 should be substituted. 14 In relation to the question of costs of this application relating to the form of orders, I note there have clearly been constructive discussions between the parties in relation to the form of the proposed orders. I therefore consider there should be no order as to costs.
Case: MacLean v Shell Chemical (Australia) Pty Ltd (1984) 2 FCR 593
Outcome: cited
In support of this submission, Dynamic Supplies referred to the recent decision in Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd [2007] FCAFC 146. In that case, the Full Court at [104] accepted the proposition that injunctions should be granted in clear and unambiguous terms which leave no room for the persons to whom they are directed to wonder whether their conduct falls within the scope of the injunction. This is because failure to comply with the terms of a court order may give rise to contempt proceedings in which determination of questions of construction of the terms of the injunction is not appropriate since ambiguity or uncertainty may be a defence in such proceedings: see ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248 at 259 (per Lockhart J); MacLean v Shell Chemical (Australia) Pty Ltd (1984) 2 FCR 593 at 599 (per Toohey J). Similar remarks were made by a Full Court of this Court in Commodore Business Machines Pty Ltd v Trade Practices Commission (1990) 92 ALR 563 at 574-575, where the Court adopted the principle that injunctive relief should be based upon the specific case alleged and proved against the defendant, and indicate in clear terms the conduct enjoined so that he or she knows what is expected to be done.
Case: MZNAX v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCA 1126
Outcome: cited
The " making of an application within the prescribed time is an essential preliminary to the exercise of the RRT's function ": Fernando v Minister for Immigration &amp; Multicultural Affairs [2000] FCA 324 at [31] , [2000] FCA 324 ; 97 FCR 407 at 415 per Heerey J. Justice Finkelstein at [48] referred to the " need for the expeditious determination of the validity of an administrative decision " and continued: [49] It is also important to note that when Parliament conferred upon a non-citizen the right to apply to the Tribunal for the review of an RRT-reviewable decision, it also circumscribed that right by requiring it to be exercised within a stipulated period: see s31 of the Migration Reform Act 1992 (Cth) inserting into the Migration Act s166B permitting review and s166BA limiting the time for that review. This suggests that the right to review will cease to exist after the prescribed period has elapsed: compare Maxwell v Murphy (1957) 96 CLR 261 at 269 per Dixon CJ. [50] Then there is the language of s412 itself. An application for review "must" be given to the Tribunal within the prescribed period. If one adopts, as it is sometimes necessary to do, the maxim that Parliament says what it means and means what is says, the language adopted by the legislature strongly suggests that an application given to the Tribunal after the relevant period has elapsed is invalid. [51] The consequences of a contrary construction must also be taken into account. If an application can be made to the Tribunal after the prescribed period has elapsed then it can be made at any time thereafter. That is to say, if an application made beyond the prescribed period is a valid application, it will be valid if given one day or one year after that period. This result could not have been intended. [52] The appellant seeks to avoid this problem by arguing that the Tribunal has discretion whether or not to consider a late application. The argument is without foundation. The Tribunal has the jurisdiction conferred upon it by the Migration Act . If it is given a valid application for review it must determine that application according to its merits. The Tribunal has no power to refuse to consider a valid application. I leave out of account the question whether the Tribunal has power to strike out an application which is brought in abuse of process. It is not necessary to determine, on this appeal, whether an administrative tribunal has such a power. Dowsett J agreed: [2000] FCA 324 at [55] . The decision of the Full Court has since been repeatedly followed: VAQ v Minister for Immigration &amp; Multicultural Affairs [2002] FCA 170 at [6] per Sundberg, Marshall and Weinberg JJ; MZNAX v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCA 1126 ; VOAM v Minister for Immigration &amp; Multicultural Affairs [2003] FCA 396 at [10] per French J.
Case: SZEBS v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2006] FCA 456
Outcome: followed
There is no power to " override " the time limitation prescribed by s 412(1)(b): VEAN of 2002 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCAFC 311 at [32] [33] per Gray, Whitlam and Mansfield JJ, [2003] FCAFC 311 ; 133 FCR 570. Their Honours there said that there was no analogy to the obligation to provide procedural fairness. The issue was not the procedural obligations imposed upon the Tribunal in performing its review function, but whether the Tribunal had power to entertain the application for review lodged out of time. See also: SZEBS v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2006] FCA 456.
Case: SZJMY v Minister for Immigration &amp; Citizenship [2008] FMCA 105
Outcome: cited
The Federal Magistrates Court dismissed an application seeking review of the decision of the Tribunal: SZJMY v Minister for Immigration &amp; Citizenship [2008] FMCA 105. 5 The Appellants now appeal to this Court. Their Grounds of Appeal contend that the Tribunal committed jurisdictional error and that the Federal Magistrate erred in not so concluding. The Appellants appeared before this Court unrepresented, albeit with the benefit of an interpreter. 6 It is considered that the learned Federal Magistrate was correct in concluding that the non-compliance with the time limits within which an application must be made to the Tribunal deprived the Tribunal of jurisdiction. The appeal, accordingly, must be dismissed.
Case: VAQ v Minister for Immigration &amp; Multicultural Affairs [2002] FCA 170
Outcome: cited
The " making of an application within the prescribed time is an essential preliminary to the exercise of the RRT's function ": Fernando v Minister for Immigration &amp; Multicultural Affairs [2000] FCA 324 at [31] , [2000] FCA 324 ; 97 FCR 407 at 415 per Heerey J. Justice Finkelstein at [48] referred to the " need for the expeditious determination of the validity of an administrative decision " and continued: [49] It is also important to note that when Parliament conferred upon a non-citizen the right to apply to the Tribunal for the review of an RRT-reviewable decision, it also circumscribed that right by requiring it to be exercised within a stipulated period: see s31 of the Migration Reform Act 1992 (Cth) inserting into the Migration Act s166B permitting review and s166BA limiting the time for that review. This suggests that the right to review will cease to exist after the prescribed period has elapsed: compare Maxwell v Murphy (1957) 96 CLR 261 at 269 per Dixon CJ. [50] Then there is the language of s412 itself. An application for review "must" be given to the Tribunal within the prescribed period. If one adopts, as it is sometimes necessary to do, the maxim that Parliament says what it means and means what is says, the language adopted by the legislature strongly suggests that an application given to the Tribunal after the relevant period has elapsed is invalid. [51] The consequences of a contrary construction must also be taken into account. If an application can be made to the Tribunal after the prescribed period has elapsed then it can be made at any time thereafter. That is to say, if an application made beyond the prescribed period is a valid application, it will be valid if given one day or one year after that period. This result could not have been intended. [52] The appellant seeks to avoid this problem by arguing that the Tribunal has discretion whether or not to consider a late application. The argument is without foundation. The Tribunal has the jurisdiction conferred upon it by the Migration Act . If it is given a valid application for review it must determine that application according to its merits. The Tribunal has no power to refuse to consider a valid application. I leave out of account the question whether the Tribunal has power to strike out an application which is brought in abuse of process. It is not necessary to determine, on this appeal, whether an administrative tribunal has such a power. Dowsett J agreed: [2000] FCA 324 at [55] . The decision of the Full Court has since been repeatedly followed: VAQ v Minister for Immigration &amp; Multicultural Affairs [2002] FCA 170 at [6] per Sundberg, Marshall and Weinberg JJ; MZNAX v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCA 1126 ; VOAM v Minister for Immigration &amp; Multicultural Affairs [2003] FCA 396 at [10] per French J.