mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: In the Matter of Woo; National Australia Bank v Leroy [2003] FCA 862
Outcome: cited
position identified by Jessel MR was accepted as correct in relation to disclaimers by liquidators and trustees in bankruptcy in a series of Australian cases decided prior to the enactment of ss 13H and 13J of the RP Act , and collected by Bowen CJ in Eq in Re Middle Harbour Investments Ltd and the Companies Act [1977] 2 NSWLR 652 at 662A-G, see too at 662G-664G; and Needham J in Re Tulloch Ltd 3 ACLR at 812-813 (followed by Madgwick J in In the Matter of Woo; National Australia Bank v Leroy [2003] FCA 862 at [10] ); see too the discussions by Napier CJ in Ex parte Cleland &amp; Teesdale Smith [1960] SASR 199 at 209, Bryson J in Sandhurst Trustees Ltd v 72 Seventh Street Nominees Pty Ltd (in liq) (1998) 45 NSWLR 556 at 563B-566A (who did discuss ss 13H and 13J) and by EM Heenan J in Rams Mortgage Corporation Ltd v Skipworth (No 2) [2007] WASC 75 ; (2007) 239 ALR 799 at 800-802 [6] - [11] . In Re Condobolin Bila CDEP Ltd (deregistered); Commonwealth v New South Wales (2006) 59 ACSR 682 , Gyles J held that where land had been purchased by a company using grant moneys from a Commonwealth body that later was wound up and the liquidator disclaimed the land, it should be ordered pursuant to s 568F of the Corporations Act 2001 (Cth) to vest in the Commonwealth, the State having submitted to any order the Court might make.
Case: Mabo v Queensland [No 2] [1992] HCA 23 ; (1992) 175 CLR 1
Outcome: cited
foundation of land tenure in Australian law was identified by Brennan J (with whom Mason CJ and McHugh J expressly agreed) in Mabo v Queensland [No 2] [1992] HCA 23 ; (1992) 175 CLR 1 at 47-48 as being derived from the grant of tenure of some kind by the Crown; see too at 81 per Deane and Gaudron JJ. Brennan J said that one incident of such tenure was the Crown's right to escheat: Mabo 175 CLR at 48; see too at 80 per Deane and Gaudron JJ. And in Wik Peoples v Queensland (1996) 187 CLR 1 at 90-91 Brennan CJ explained that the doctrines of tenure, of which escheat is an incident, and of estate, ensure that no land in which the Crown has granted an interest is ever without a legal owner. Escheat was abolished in England by s 45(1)(d) of Administration of Estates Act 1925 (Imp). What escheat involves at common law was elegantly explained by the Earl of Selborne LC giving the opinion of the Judicial Committee in Attorney-General of Ontario v Mercer (1883) (8 App Cas 767) at 772. First, the Lord Chancellor quoted the following from Coke on Littleton 13a: " 'Escheat' is a word of art, and signifieth properly when by accident the lands fall to the lord of whom they are holden, in which case we say the fee is escheated." His Lordship then continued: "The writ of escheat, when the tenant died without heirs, was in this form:- 'The King to the Sheriff, &amp;c. Command A., &amp;c., that he render to B. ten acres of land, with the appurtenances, in N., which C. held of him, and which ought to revert to him, the said B., as his escheat, for that the said C. died without heirs' (F. N. B., 144 F.). If there was a mesne lord, the escheat was to him; if not, to the King. From the use of the word 'revert', in the writ of escheat, is manifestly derived the language of some authorities which speak of escheat as a species of 'reversion'. There cannot, in the usual and proper sense of the term, be a reversion expectant upon an estate in fee simple. What is meant is that, when there is no longer any tenant, the land returns, by reason of tenure, to the lord by whom, or by whose predecessors in title, the tenure was created. Other writers speak of the lord as taking it by way of succession or inheritance, as if from the tenant, which is certainly not accurate. The tenant's estate (subject to any charges upon it which he may have created) has come to an end, and the lord is in by his own right."
Case: Owners of the Ship 'Shin Kobe Maru' v Empire Shipping Company Inc [1994] HCA 54 ; (1994) 181 CLR 404
Outcome: cited
as all judges since Jessel MR have recognised, the question of where the title goes after a disclaimer is as clear as mud. The device of treating the title as going to the Crown in right of the State (or Territory) in which the property is located may be convenient, so long as it respects the source whence it derives, namely (in a bankruptcy) s 133 of the Bankruptcy Act (or Div 7A of Pt 5.6 of the Corporations Act ) and the intention of the Parliament of the Commonwealth that this title in the Crown is not absolute or by escheat. This result can be accommodated by its limited interaction with Torrens title legislation, and the special position created with the (temporary) repository of the title, namely the Crown, pending the final decision of the Court as to the person in whom the title will vest: cf Figgins 196 CLR at 262-264 [22]-[27]. This is an incident of the conferral of jurisdiction on the Court to decide these questions. It is not appropriate to read provisions conferring jurisdiction on or granting powers to a court by making implications or imposing limitations which are not to be found in the express words of the legislation: Owners of the Ship 'Shin Kobe Maru' v Empire Shipping Company Inc [1994] HCA 54 ; (1994) 181 CLR 404 at 421 per Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ.
Case: Rams Mortgage Corporation Ltd v Skipworth (No 2) [2007] WASC 75 ; (2007) 239 ALR 799
Outcome: cited
position identified by Jessel MR was accepted as correct in relation to disclaimers by liquidators and trustees in bankruptcy in a series of Australian cases decided prior to the enactment of ss 13H and 13J of the RP Act , and collected by Bowen CJ in Eq in Re Middle Harbour Investments Ltd and the Companies Act [1977] 2 NSWLR 652 at 662A-G, see too at 662G-664G; and Needham J in Re Tulloch Ltd 3 ACLR at 812-813 (followed by Madgwick J in In the Matter of Woo; National Australia Bank v Leroy [2003] FCA 862 at [10] ); see too the discussions by Napier CJ in Ex parte Cleland &amp; Teesdale Smith [1960] SASR 199 at 209, Bryson J in Sandhurst Trustees Ltd v 72 Seventh Street Nominees Pty Ltd (in liq) (1998) 45 NSWLR 556 at 563B-566A (who did discuss ss 13H and 13J) and by EM Heenan J in Rams Mortgage Corporation Ltd v Skipworth (No 2) [2007] WASC 75 ; (2007) 239 ALR 799 at 800-802 [6] - [11] . In Re Condobolin Bila CDEP Ltd (deregistered); Commonwealth v New South Wales (2006) 59 ACSR 682 , Gyles J held that where land had been purchased by a company using grant moneys from a Commonwealth body that later was wound up and the liquidator disclaimed the land, it should be ordered pursuant to s 568F of the Corporations Act 2001 (Cth) to vest in the Commonwealth, the State having submitted to any order the Court might make.
Case: Re Condobolin Bila CDEP Ltd (deregistered); Commonwealth v New South Wales (2006) 59 ACSR 682
Outcome: cited
position identified by Jessel MR was accepted as correct in relation to disclaimers by liquidators and trustees in bankruptcy in a series of Australian cases decided prior to the enactment of ss 13H and 13J of the RP Act , and collected by Bowen CJ in Eq in Re Middle Harbour Investments Ltd and the Companies Act [1977] 2 NSWLR 652 at 662A-G, see too at 662G-664G; and Needham J in Re Tulloch Ltd 3 ACLR at 812-813 (followed by Madgwick J in In the Matter of Woo; National Australia Bank v Leroy [2003] FCA 862 at [10] ); see too the discussions by Napier CJ in Ex parte Cleland &amp; Teesdale Smith [1960] SASR 199 at 209, Bryson J in Sandhurst Trustees Ltd v 72 Seventh Street Nominees Pty Ltd (in liq) (1998) 45 NSWLR 556 at 563B-566A (who did discuss ss 13H and 13J) and by EM Heenan J in Rams Mortgage Corporation Ltd v Skipworth (No 2) [2007] WASC 75 ; (2007) 239 ALR 799 at 800-802 [6] - [11] . In Re Condobolin Bila CDEP Ltd (deregistered); Commonwealth v New South Wales (2006) 59 ACSR 682 , Gyles J held that where land had been purchased by a company using grant moneys from a Commonwealth body that later was wound up and the liquidator disclaimed the land, it should be ordered pursuant to s 568F of the Corporations Act 2001 (Cth) to vest in the Commonwealth, the State having submitted to any order the Court might make.
Case: Re Middle Harbour Investments Ltd and the Companies Act [1977] 2 NSWLR 652
Outcome: cited
position identified by Jessel MR was accepted as correct in relation to disclaimers by liquidators and trustees in bankruptcy in a series of Australian cases decided prior to the enactment of ss 13H and 13J of the RP Act , and collected by Bowen CJ in Eq in Re Middle Harbour Investments Ltd and the Companies Act [1977] 2 NSWLR 652 at 662A-G, see too at 662G-664G; and Needham J in Re Tulloch Ltd 3 ACLR at 812-813 (followed by Madgwick J in In the Matter of Woo; National Australia Bank v Leroy [2003] FCA 862 at [10] ); see too the discussions by Napier CJ in Ex parte Cleland &amp; Teesdale Smith [1960] SASR 199 at 209, Bryson J in Sandhurst Trustees Ltd v 72 Seventh Street Nominees Pty Ltd (in liq) (1998) 45 NSWLR 556 at 563B-566A (who did discuss ss 13H and 13J) and by EM Heenan J in Rams Mortgage Corporation Ltd v Skipworth (No 2) [2007] WASC 75 ; (2007) 239 ALR 799 at 800-802 [6] - [11] . In Re Condobolin Bila CDEP Ltd (deregistered); Commonwealth v New South Wales (2006) 59 ACSR 682 , Gyles J held that where land had been purchased by a company using grant moneys from a Commonwealth body that later was wound up and the liquidator disclaimed the land, it should be ordered pursuant to s 568F of the Corporations Act 2001 (Cth) to vest in the Commonwealth, the State having submitted to any order the Court might make.
Case: Re Stone; Read v Dubua (1936) 36 SR (NSW) 508
Outcome: discussed
re Stone; Read v Dubua (1936) 36 SR (NSW) 508 at 517 Jordan CJ, with whom Davidson J agreed, said that at common law if a cestuis que trust or mortgagor of land died without heirs and intestate, the trustee or mortgagee in whom the legal estate had vested henceforth held the land free from the trusts or from the equity of redemption and the doctrine of escheat did not apply. Escheat could not occur if the Crown or the mesne lord had a tenant: 10 Halsbury's Laws of England (2 nd ed) 616 [907]. In Beale v Symonds [1853] EngR 168 ; (1853) 16 Beav 406 at 413 [51 ER 835 at 838] Sir John Romilly MR held that no escheat occurred if a legal tenant was in possession of land (even if he or she were originally a trustee and the cestuis que trust had died without heirs and no further beneficiary had been identified in the trust deed or conveyance to take the beneficial interest). He followed the decision of Lord Henley (Lord Keeper) and Clarke MR, Lord Mansfield CJ dissenting, in Burgess v Wheate [1757] EngR 5 ; (1759) 1 Eden 177 [28 ER 652] finding that a mortgagee, who held the legal title in fee to land in consequence of a mortgage from a deceased who died intestate without heirs, first, did not lose the title by escheat but, secondly, could not deal with it as absolute owner free of the equity of redemption being available to discharge any subsisting (enforceable) debts of the deceased: Beale 16 Beav at 415-416; [51 ER at 839].
Case: The King v Attorney-General of British Columbia [1924] AC 213
Outcome: cited
addition, given that now such disclaimers and vesting orders occur under laws of the Commonwealth, the question may arise as to whether any escheat or remaining interest in the property after a disclaimer should be treated as falling into the Crown in right of the Commonwealth rather than the State: cf Attorney-General of Ontario 8 App Cas 767. And, in The King v Attorney-General of British Columbia [1924] AC 213 at 218-219 esp at 219 Lord Sumner observed that the principles upon which escheat and bona vacantia fall to the Crown are that where there is no private person entitled, the Crown takes: see too Land Law (5 th ed) where at pp 76-77 Professor Butt suggests that the only remnants in Australia of the doctrine of escheat are in the case of disclaimers by trustees in bankruptcy or liquidators. Because s 133(9) of the Bankruptcy Act preserves the possibility that the Court may vest disclaimed property in a person these doctrines may not operate in an unqualified way in the current legislative scheme. Once again, this is not the occasion to decide these questions, but they will require attention at some time. The title to the bankrupt's former land
Case: Wik Peoples v Queensland (1996) 187 CLR 1
Outcome: cited
foundation of land tenure in Australian law was identified by Brennan J (with whom Mason CJ and McHugh J expressly agreed) in Mabo v Queensland [No 2] [1992] HCA 23 ; (1992) 175 CLR 1 at 47-48 as being derived from the grant of tenure of some kind by the Crown; see too at 81 per Deane and Gaudron JJ. Brennan J said that one incident of such tenure was the Crown's right to escheat: Mabo 175 CLR at 48; see too at 80 per Deane and Gaudron JJ. And in Wik Peoples v Queensland (1996) 187 CLR 1 at 90-91 Brennan CJ explained that the doctrines of tenure, of which escheat is an incident, and of estate, ensure that no land in which the Crown has granted an interest is ever without a legal owner. Escheat was abolished in England by s 45(1)(d) of Administration of Estates Act 1925 (Imp). What escheat involves at common law was elegantly explained by the Earl of Selborne LC giving the opinion of the Judicial Committee in Attorney-General of Ontario v Mercer (1883) (8 App Cas 767) at 772. First, the Lord Chancellor quoted the following from Coke on Littleton 13a: " 'Escheat' is a word of art, and signifieth properly when by accident the lands fall to the lord of whom they are holden, in which case we say the fee is escheated." His Lordship then continued: "The writ of escheat, when the tenant died without heirs, was in this form:- 'The King to the Sheriff, &amp;c. Command A., &amp;c., that he render to B. ten acres of land, with the appurtenances, in N., which C. held of him, and which ought to revert to him, the said B., as his escheat, for that the said C. died without heirs' (F. N. B., 144 F.). If there was a mesne lord, the escheat was to him; if not, to the King. From the use of the word 'revert', in the writ of escheat, is manifestly derived the language of some authorities which speak of escheat as a species of 'reversion'. There cannot, in the usual and proper sense of the term, be a reversion expectant upon an estate in fee simple. What is meant is that, when there is no longer any tenant, the land returns, by reason of tenure, to the lord by whom, or by whose predecessors in title, the tenure was created. Other writers speak of the lord as taking it by way of succession or inheritance, as if from the tenant, which is certainly not accurate. The tenant's estate (subject to any charges upon it which he may have created) has come to an end, and the lord is in by his own right."
Case: CBS Songs Limited v Amstrad Consumer Electronics PLC [1988] 1 AC 1013 
Outcome: considered
I turn to the decision of the House of Lords in CBS Songs Limited v Amstrad Consumer Electronics PLC [1988] 1 AC 1013. The facts appear sufficiently from the head note as follows: 'The plaintiffs, suing on behalf of themselves and other copyright owners in the music trade, claimed that the defendants, by manufacturing, advertising and offering for sale hi-fi systems with facilities for, inter alia, recording at high speed from pre-recorded cassettes onto blank tapes, had authorised and incited members of the public to infringe their copyrights, were joint infringers with such members of the public and were in breach of a duty of care owed to the copyright owners not to supply the machines without taking such precautions as would reasonably ensure that the copyrights would not be infringed by their use. They sought an injunction to retrain the defendants from parting with possession of the machines, or any like machines, without taking such precautions.' 158 At 600, Gummow J (Gaudron J concurring) also identified the decision in The "Koursk" as defining joint liability for the purposes of Australian law. At 601 602, his Honour distinguished the decision in CBS Songs on its fact but did not doubt its correctness. 162 Hobhouse LJ subsequently referred to The "Koursk" , CBS Songs and Unilever , concluding (at 46) that these cases established that: 'It is only conduct which comes into the first or the third of the categories I have set out above which constitute the commission of a tort. The criminal law for obvious policy reasons goes further than the civil law. Acts which knowingly facilitate the commission of a crime amount to the crime of aiding and abetting but they do not amount to a tort or make the aider liable as a joint tortfeasor.' 166 See also CBS Songs (supra) at 1053-1055 and Australian Tape Manufacturers Association Ltd v The Commonwealth (1993) 67 ALJR 315 at 317.
Case: Credit Lyonnais Bank Nederland NV v Export Credit Guarantee Department [1998] 1 Lloyd's Rep 19 
Outcome: considered
Finally, I should refer to the decision of the Court of Appeal in Credit Lyonnais Bank Nederland NV v Export Credit Guarantee Department [1998] 1 Lloyd's Rep 19. It is not necessary to set out the rather complex facts of the case, but I will include two extended extracts from the reasons for judgment of Stuart-Smith and Hobhouse LLJJ. Stuart-Smith LJ said at 35: 'Be that as it may, it seems to me to be well established that a person who acts with another to commit a tort in furtherance of a common design will be liable as a joint tortfeasor. It is not enough that he merely facilitates the commission of the tort unless his assistance is given in pursuance and furtherance of the common design.' 164 In Kerly's Law of Trademarks and Trade Names 14 th ed at par 19-044, the learned authors observe, in connection with trademarks, that: 'For the general principles applicable in relation to joint liability based on procurement or common design see CBS v Armstrad and Credit Lyonnais v Export Credit Guarantee Department '. Those decisions are based on that in The "Koursk" . The High Court's view of that case appears from the decision in Thompson v Australian Capital Television and is the relevant test for present purposes.
Case: Unilever PLC v Gillette (UK) Ltd [1989] RPC 583 
Outcome: referred to
His Honour referred to the The "Koursk" and another case, and then observed that Lord Justice Mustill, in Unilever PLC v Gillette (UK) Ltd [1989] RPC 583: '... stated the common law rule that two persons were joint tortfeasors ... where the two were concerned in a joint act done in pursuance of a common purpose. After reviewing the patent cases and the speech of Lord Templeman in CBS Songs Ltd v Armstrad ... Lord Justice Mustill said at p 609 that the relevant question is whether: (a) there was a common design between B and G to do acts which, if the patent is upheld, amounted to infringements, and (b) B had acted in furtherance of that design. I use the word "common design" because they are readily to hand, but there are other expressions in the cases, such as "concerted action" or "agreed or common action" which will serve just as well.' 162 Hobhouse LJ subsequently referred to The "Koursk" , CBS Songs and Unilever , concluding (at 46) that these cases established that: 'It is only conduct which comes into the first or the third of the categories I have set out above which constitute the commission of a tort. The criminal law for obvious policy reasons goes further than the civil law. Acts which knowingly facilitate the commission of a crime amount to the crime of aiding and abetting but they do not amount to a tort or make the aider liable as a joint tortfeasor.'
Case: University of New South Wales v Moorhouse [1975] HCA 26 ; (1974-1975) 133 CLR 1 
Outcome: considered
The applicant puts some emphasis upon Toea's legal capacity to control use of the Market premises. It implicitly asserts that the respondents failed to prevent infringement notwithstanding that power, and that such failure is a basis for inferring their 'concurrence' in the infringement. The question of control has arisen frequently in connection with breach of copyright. Subsection 36(1) of the Copyright Act 1968 (Cth) (the " Copyright Act ") provides that a person infringes a copyright if he or she 'not being the owner of the copyright, and without the licence of the owner of the copyright, does in Australia, or authorises the doing in Australia, any act comprised in the copyright.' In University of New South Wales v Moorhouse [1975] HCA 26 ; (1974-1975) 133 CLR 1, the High Court considered the case of a university library which had provided photocopying machines on its premises, one of which had been used to make an unauthorized copy of a literary work. The question was whether the university had infringed by authorization. At 20-21, Jacobs J, with whom McTiernan J agreed, said concerning the word 'authorises' : 'It is established that word is not limited to the authorising of an agent by a principal. Where there is such an authority the act of the agent is the act of the principal and thus the principal himself may be said to do the act comprised in the copyright. But authorisation is wider than authority. It has, in relation to a similar use in previous copyright legislation, been given the meaning, taken from the Oxford Dictionary, of "sanction, approve, countenance". ...I have no doubt that the word is used in the same sense in section 36(1). It is a wide meaning which in cases of permission or invitation is apt to apply both where an express permission or invitation is extended to do the act comprising the copyright and where such a permission or invitation may be implied. Where a general permission or invitation may be implied it is clearly unnecessary that the authorising party have knowledge that a particular act comprised in the copyright will be done. The acts and omissions of the alleged authorising party must be looked at in the circumstances in which the act comprised in the copyright is done. The circumstances will include the likelihood that such an act will be done. "... (t)he Court may infer an authorisation or permission from acts which fall short of being direct and positive; ... indifference, exhibited by acts of commission or omission, may reach a degree from which authorisation or permission may be inferred. It is a question of fact in each case what is the true inference to be drawn from the conduct of the person who is said to have authorised ..." '
Case: Australian Tape Manufacturers Association Ltd v The Commonwealth (1993) 67 ALJR 315
Outcome: cited
See also CBS Songs (supra) at 1053-1055 and Australian Tape Manufacturers Association Ltd v The Commonwealth (1993) 67 ALJR 315 at 317.
Case: Charles v Fuji Xerox Australia Pty Ltd [2000] FCA 1531 ; (2000) 105 FCR 573 at [38] - [43]
Outcome: cited
as both Ms Alison O'Brien and Mr Jorgensen submitted, the right of an affected person to apply to this Court for relief under s 46PO is limited to applications in respect of complaints of "unlawful discrimination" made to the Commission under Pt IIB. The effect of s 46PO(3) is to preclude a complainant from agitating in this Court a complaint in relation to other types of discrimination: Charles v Fuji Xerox Australia Pty Ltd [2000] FCA 1531 ; (2000) 105 FCR 573 at [38] - [43] per Katz J. Ms Bahonko has submitted that, pursuant to s 46PR the Court "is not bound by technicalities or legal forms". Accordingly, it should allow her to pursue her complaints regarding religious and political discrimination within this proceeding notwithstanding the fact that her application was brought pursuant to s 46PO. She submitted that this was necessary in order to avoid possible fragmentation of proceedings. The question whether this Court has jurisdiction to hear a matter, however, is not a mere technicality or legal form. This Court is either vested with jurisdiction to hear the complaints regarding religious and political discrimination, or it is not. It is clear for the reasons initially outlined by Mr Jorgensen, and later taken up by Ms Alison O'Brien, as well as from the provisions of the HREOC Act itself, that this Court has no such jurisdiction.