mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: The " Utopia " [1893] AC 492
Outcome: discussed
as Gaudron, Gummow and Kirby JJ said in Laemthong 190 CLR at 201 there may be control of a ship without possession. They said that one person may have possession of a ship and another control. Their Honours gave as an example the decision of the Privy Council in The " Utopia " [1893] AC 492 where the owners had not given up their rights to possession of their ship just after she was wrecked but a port authority assumed control of the wreck. In giving their Lordships' advice, Sir Francis Jeune said ( The "Utopia" [1893] AC at 498-499): "In the present case, the Utopia was certainly not abandoned by her owners in the sense that they gave up all rights of property and possession in her. On the contrary, they no doubt always intended to raise her if they could, .... It is clear, however, that before the collision with the Primula the port authority of Gibraltar, represented by the acting captain of the port, took from the owners, and itself assumed, the task of protecting other vessels from the wreck by means of the signals which it directed to be employed for the purpose. The owners of the Utopia yielded to the action of the port authority, and thenceforward stood aloof from the operation of lighting the wreck. In these circumstances, it appears to their Lordships that the control and management of the wreck, so far as related to the protection of other vessels from her, and of her from them, was properly transferred to the port authority . Further, their Lordships are unable to see how any part of the conduct of the owners of the Utopia can lay them open to a charge of negligence. Neither in allowing the port authority to take on itself the control of the lighting, nor in abstaining from interfering with the subsequent action of the port authority in the matter, do their Lordships think that any default can be imputed to them. It would be dangerous if an owner of a wreck were compelled, in order to avoid a personal responsibility, to interfere with the action taken by a public authority constituted for such purposes to ensure the safety of other vessels navigating those waters." (emphasis added)
Case: The Baumwoll Manufactur von Carl Scheibler v Furness [1893] AC 8
Outcome: followed
Asia has, since its acquisition, contracted with masters and officers for the ship as sole employer, writing to them and: "offer[ing] the post of Master with effect from the date of joining onboard the vessel M.V. Gem of Sagafa owned by West Asia Maritime Limited. " (original emphasis) The exercise of a right to appoint the master and officers is a strong indicium of ownership of a ship during a maritime adventure: The Baumwoll Manufactur von Carl Scheibler v Furness [1893] AC 8 at 17 per Lord Herschell LC. West Asia contended that the arrangements it had made with Four M should be treated as valid and effectual on their face. It said that by agreeing to meet its share of the expenses for operating the ship and executing finance and mortgage documents to support the borrowing to purchase her, Four M gave value for its one share in the ship. However, no financial accounts or other documents are in evidence to show that Four M had any assets or financial substance to support its participation in the acquisition and holding of the ship. Its 2009 annual return showed that it had a paid up capital of about 18 million rupees and debts of about 220 million rupees.
Case: The Owners of the Motor Vessel "Iran Amanat v KMP Coastal Oil Pte Ltd [1999] HCA 11 ; (1999) 196 CLR 130
Outcome: applied
Parliament has provided that the unique remedy of an action in rem is available only in the circumstances codified in the Act, especially in ss 14-19 and 29. Those provisions have to be read and construed in their legal and historical context as giving effect to the judicial power of the Commonwealth in matters of Admiralty and maritime jurisdiction under s 76(iii) of the Australian Constitution . The Act and its definitions of maritime claims have both a domestic and an international context informed by references such as ALRC 33, the 1952 Arrest Convention and, where the same concepts and defined terms are used, English legislation and case law: The Owners of the Motor Vessel "Iran Amanat v KMP Coastal Oil Pte Ltd [1999] HCA 11 ; (1999) 196 CLR 130 at 138 [20] per Gleeson CJ, McHugh, Gummow, Kirby and Hayne JJ.
Case: The Owners of the Ship "Shin Kobe Maru" v Empire Shipping Co Inc [1994] HCA 54 ; (1994) 181 CLR 404
Outcome: applied
Act provides a code governing the right to commence a proceeding in rem against a ship (s 14). When challenging jurisdiction as a preliminary issue under the Act, the plaintiff must establish the facts on which jurisdiction exists on the balance of probabilities, in light of all the evidence advanced: The Owners of the Ship "Shin Kobe Maru" v Empire Shipping Co Inc [1994] HCA 54 ; (1994) 181 CLR 404 at 426 per Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ. The evidence ranged over a wide field. It included examining the circumstances in which the " Gem of Safaga " was purchased in early 2007 and how the other two, chartered, ships were operated. The chief operating officer of West Asia, Subhash Joshi, was responsible for the acquisition and financing of its fleets. He gave evidence to explain how the " Gem of Safaga " was acquired. She was built in 1982 and is of 227m LOA and 65,163 deadweight tonnes. The negotiations for the purchase of the ship " Gem of Safaga " initially proceeded through brokers acting for the vendor, Tedross Navigation SA, and for West Asia. Since s 19 confers jurisdiction on a court, it should not be construed or hedged about by making implications or imposing limitations that do not appear in its express terms: Shin Kobe Maru 181 CLR at 421; Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304 at 361 [178] per Gummow, Hayne, Heydon and Kiefel JJ. Additionally, s 15AB of the Acts Interpretation Act 1901 (Cth) permits the meaning of an expression in an Act to be confirmed by reference to a report such as ALRC 33 (see s 15AB(1)(a) and (2)(b)): Laemthong International Lines Co Ltd v BPS Shipping Ltd [1997] HCA 55 ; (1997) 190 CLR 181 at 189 per Brennan CJ, 190 per Toohey J, 204 per Gaudron, Gummow and Kirby JJ.
Case: The Permina 3001 [1979] 1 Lloyd's Rep 327
Outcome: applied
a valuable discussion, Reyes J (with whom Ma CJHC and Stone J agreed in separate judgments) considered the, perhaps narrower, expression "beneficial owner" as used in s 12B(4) of the Hong Kong High Court Ordinance (Cap 4) in The "Convenience Container" [2007] 3 HKLRD 575. Reyes J concluded that the expression focussed "... simply on matters of title, namely, the right to sell or dispose of a ship": " Convenience Container " [2007] 3 HKLRD at 584 [43]. Reyes J also observed that beneficial ownership was not merely concerned with control or administration of a vessel or even the enjoyment of the proceeds of its sale. He recognised that these may or may not be useful as evidence from which a finding of ownership can be made. But he held that the key question was whether the relevant person in s 19 had title, as "the owner" of the res in order to support its arrest: cp "Convenience Container " [2007] 3 HKLRD at 583-584 [35]-[42]; see too per Ma CJHC at 606-607 [165]-[167] and Stone J at 595-597 [108]-[115]; I Congreso del Partido [1978] QB 500 at 538E-F, 541B per Robert Goff J; The Permina 3001 [1979] 1 Lloyd's Rep 327 at 329 per Wee CJ in the Singapore Court of Appeal; and The "Tychy" [1999] 2 Lloyd's Rep 11 at 20 per Clarke LJ, Otton and Waller LJJ agreeing.
Case: Trustees of the Property of Cummins (a Bankrupt) v Cummins [2006] HCA 6 ; (2006) 227 CLR 278
Outcome: cited
when a person purchases and pays for real or personal property and directs that the legal title be transferred into the name of a stranger, the law presumes, in the absence of evidence to the contrary, that the property is held on a resulting trust for the purchaser: Charles Marshall Pty Ltd v Grimsley [1956] HCA 28 ; (1956) 95 CLR 353 at 363-364 per Dixon CJ, McTiernan, Williams, Fullagar and Taylor JJ. Here, as West Asia argued, the co-ownership agreement, the mortgage given by Four M and West Asia's accounting entries are evidence to the contrary. Evidence of the intention of the purchaser at the time of the transaction or so immediately after it that it constitutes a part of it and admissions against interest, will be relevant to rebut the presumption. So will evidence of subsequent dealings: Trustees of the Property of Cummins (a Bankrupt) v Cummins [2006] HCA 6 ; (2006) 227 CLR 278 at 300-301 [65] - [67] per Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ. If the stranger assumes liability under a mortgage given to obtain finance for the purchase, this conduct can be evidence rebutting the presumption: Calverley v Green [1984] HCA 81 ; (1984) 155 CLR 242 at 252 per Gibbs CJ, 257-258 per Mason and Brennan JJ, at 268 per Deane J.
Case: Weissensteiner v The Queen [1993] HCA 65 ; (1993) 178 CLR 217
Outcome: cited
carries the ultimate burden of proof that the jurisdictional facts exist on which the arrest can be justified. It must establish those facts on the balance of probabilities taking into account all relevant matters: s 140 of the Evidence Act 1995 (Cth); see Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132 ; (2007) 162 FCR 466 at 479-482 [29] - [38] , 488-489 [70]-[73] per Weinberg, Bennett JJ and myself. And, as Lord Mansfield CJ said long ago in Blatch v Archer [1774] EngR 2 ; (1774) 1 Cowp 63 at 65: "It is certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted." See too: Weissensteiner v The Queen [1993] HCA 65 ; (1993) 178 CLR 217 at 225 per Mason CJ, Deane and Dawson JJ; at 233 per Brennan and Toohey JJ.
Case: Birdseye v Australian Securities and Investment Commission [2003] FCAFC 232 ; (2003) 76 ALD 321
Outcome: applied
Mr Croker told me this morning that he did not have sufficient time to prepare for the hearing of the objection to competency but I am satisfied that he is on sufficient notice of the need to be able to deal with the matter. Indeed, it is implicit in his approach to the application today that he accepts that the questions of law stated in the Notice of Appeal do not raise questions of law within the well known authorities of this Court. Those authorities include the decision in Birdseye v Australian Securities and Investment Commission [2003] FCAFC 232 ; (2003) 76 ALD 321 at 327. Stone J referred to the authorities at [16]ff in her decision to which I referred above. 19 It is plain in my view that the questions of law do not comply with the principles stated in the authorities. They are simply not questions of law. Moreover, they are not even relevant to the issues raised before the Administrative Appeals Tribunal. The purported questions cavil with the issue of whether Mr Croker is eligible for the Disability Support Pension. They are not relevant to any issue which was raised before the Administrative Appeals Tribunal.
Case: Croker v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 971
Outcome: referred to
Third, Mr Croker is well on notice of the fact that an appeal from the Administrative Appeals Tribunal must be on a question of law. On 27 June 2008 Stone J dismissed a proceeding brought by Mr Croker on that very ground: see Croker v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 971 ( Croker v Sec, Dept EEWR ). 17 Fourth, Ms Watson informs me that there are a number of unsatisfied costs orders made against Mr Croker. One such order is an order that Mr Croker pay the costs of an unsuccessful application which was heard by Branson J. That decision is the matter which was referred to in [56] of the reasons for decision of the Social Security Appeals Tribunal (set out above). Also Ms Watson refers to an unsatisfied order for security for costs of an application for leave to appeal which Mr Croker has brought against the decision of Branson J. It appears that there are also other unsatisfied costs orders. 21 In Croker v Sec, Dept EEWR [2008] FCA 971 , Stone J observed at [7] that these purposes are recognised in s 43(2B) of the Act, which provides that where the Tribunal is requested under s 43(2A) to give reasons, the reasons are to include the Tribunal's findings on material questions of fact and a reference to the evidence or other material on which those findings were based. Her Honour referred to a comparatively recent decision of Buchanan J in Jordan v Australian Postal Corporation (2007) 99 ALD 303 at 314 on this issue.
Case: Croker v Sydney Institute of TAFE (State of New South Wales) [2003] FCA 942
Outcome: followed
First, Ms Watson observed that the address given is not a proper address for service. Indeed, in Croker v Sydney Institute of TAFE (State of New South Wales) [2003] FCA 942 Bennett J found that this very address does not comply with the Rules of Court: see in particular [9] and [25] of her Honour's decision. 15 Second, it seems to me to be plain that either the email was received by Mr Croker or, if not, he does not check his emails notwithstanding the fact that the email address appears in his purported address for service in the Notice of Appeal.
Case: Jordan v Australian Postal Corporation (2007) 99 ALD 303
Outcome: referred to
In Croker v Sec, Dept EEWR [2008] FCA 971 , Stone J observed at [7] that these purposes are recognised in s 43(2B) of the Act, which provides that where the Tribunal is requested under s 43(2A) to give reasons, the reasons are to include the Tribunal's findings on material questions of fact and a reference to the evidence or other material on which those findings were based. Her Honour referred to a comparatively recent decision of Buchanan J in Jordan v Australian Postal Corporation (2007) 99 ALD 303 at 314 on this issue.
Case: Martin v Australian Postal Corp [1999] FCA 655 ; (1999) 29 AAR 420
Outcome: applied
Notwithstanding this, Mr Croker sought time to enable him to file an Amended Notice of Appeal raising two purported questions of law. The first question he seeks to raise is whether or not the delivery of the reasons by Senior Member Allen in the form of his judgment which incorporates a transcript can be said to be reasons for decision given in accordance with s 43(2) of the Administrative Appeals Tribunal Act 1975 (Cth). In Martin v Australian Postal Corp [1999] FCA 655 ; (1999) 29 AAR 420 , Burchett J at 428 observed that the essence of the requirement that the Tribunal give reasons is that its decision must be understandable. His Honour referred to the purposes that are served by this rule.
Case: SZNGR v Minister for Immigration and Citizenship [2009] FMCA 630
Outcome: affirmed
applicant applies for an extension of time in which to file and serve a notice of appeal from a decision in the Federal Magistrates Court in which Smith FM dismissed an application to review a decision of the Refugee Review Tribunal ( SZNGR v Minister for Immigration and Citizenship [2009] FMCA 630). The Tribunal in turn affirmed a decision of the delegate refusing the applicant's application for a protection visa. The applicant's explanation for the delay in filing a notice of appeal, as set out in an affidavit affirmed by him, is that he did not know Australian law and was not aware that he had 21 days after the decision was handed down. There is no need to deal with the aspect of delay further because the Minister concedes that the delay is not great and could not be said to cause any prejudice. However, it is necessary for the Court to have regard to the merits of the appeal in order to decide if the extension of time should be granted. The draft notice of appeal contains two grounds: "His Honour Smith failed to accept grounds listed in my amended application." "The Tribunal failed to understand my claim." On consideration of the grounds in the amended application that were before his Honour, and on consideration of the Tribunal decision, it is apparent that the Tribunal decision was based upon the following bases which, in turn, needed to be considered by Smith FM in assessing the applicant's application to him. The Tribunal considered the different incidents described by the applicant and set them out in some detail in its reasons. The Tribunal recognised that the applicant claimed to fear persecution in Lebanon on the grounds of religion and perceived association with, or membership of, the Lebanese forces. His claim was also based upon a lack of employment resulting from the unstable situation in Lebanon and the conflict in the area in which he lived and worked. The Convention reasons advanced by the applicant were religion and perceived political association. The Tribunal found that none of the incidents, individually or cumulatively, amounted to persecution within the meaning of s 91R of the Migration Act 1958 (Cth), either because they did not come within the description of serious harm within the instances set out in s 91R(2) , or because the description did not involve systematic and discriminatory conduct, or both. Further, the Tribunal concluded that in any event, the incidents described by the applicant did not occur for a Convention reason or by reason of a Convention characteristic. The Tribunal found that any inability of the applicant to earn a living by delivering goods to Tripoli was as a result of general conflict and not for a Convention reason. The Tribunal found that there was no relevant Convention nexus with the applicant's claimed financial difficulties and concluded that there was no real chance that the applicant would be persecuted for a Convention reason if he were to return to Lebanon now or in the reasonably foreseeable future.
Case: Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833 ; (2001) 117 FCR 424
Outcome: cited
An appeal from a judgment of the Federal Magistrates Court is an appeal by way of re-hearing. To succeed on appeal the appellant needs to show that the Federal Magistrate made an error of law or fact or that his Honour's discretion miscarried; Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47 ; (2000) 203 CLR 194, Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833 ; (2001) 117 FCR 424.
Case: Cain v Whyte [1933] HCA 6 ; (1933) 48 CLR 639
Outcome: cited
Section 52 (1) of the Bankruptcy Act 1966 (Cth) provides for the proof of certain matters and states that the Court, 'if it is satisfied with the proof of those matters, may make a sequestration order against the estate of the debtor'. It is accepted that the section gives the Court discretion to decline to make the order if persuaded 'that the public interest in dealing with the insolvent debtor and the rights of individual creditors are outweighed by other considerations'; Totev v Sfar (2006) 230 ALR 236 at 243. See also Cain v Whyte [1933] HCA 6 ; (1933) 48 CLR 639 at 645-6 and 648. It is for the debtor to persuade the Court that the circumstances are such as to warrant an exercise of the Court's discretion in his or her favour.
Case: Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47 ; (2000) 203 CLR 194
Outcome: cited
An appeal from a judgment of the Federal Magistrates Court is an appeal by way of re-hearing. To succeed on appeal the appellant needs to show that the Federal Magistrate made an error of law or fact or that his Honour's discretion miscarried; Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47 ; (2000) 203 CLR 194, Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833 ; (2001) 117 FCR 424.
Case: Commonwealth Bank of Australia v Jeans [2005] FCA 978
Outcome: cited
Where a petitioning creditor relies on a judgment debt the Court must be satisfied as to the validity of the debt and, to that extent, it may be said that the judgment 'is never conclusive in bankruptcy'; Wren v Mahony [1972] HCA 5 ; (1972) 126 CLR 212 at 224. It is accepted however, that the Court will not investigate validity as a matter of course; Simon v Vincent J. O'Gorman Pty Ltd (1979) 41 FLR 95 at 111, Commonwealth Bank of Australia v Jeans [2005] FCA 978. There must be something to suggest that no real debt lay behind the judgment, whether because of fraud, collusion or miscarriage of justice; Corney v Brien [1951] HCA 31 ; (1951) 84 CLR 343 at 357; Udovenko v Mitchell (1997) 79 FCR 418 at 421.
Case: Corney v Brien [1951] HCA 31 ; (1951) 84 CLR 343
Outcome: cited
Where a petitioning creditor relies on a judgment debt the Court must be satisfied as to the validity of the debt and, to that extent, it may be said that the judgment 'is never conclusive in bankruptcy'; Wren v Mahony [1972] HCA 5 ; (1972) 126 CLR 212 at 224. It is accepted however, that the Court will not investigate validity as a matter of course; Simon v Vincent J. O'Gorman Pty Ltd (1979) 41 FLR 95 at 111, Commonwealth Bank of Australia v Jeans [2005] FCA 978. There must be something to suggest that no real debt lay behind the judgment, whether because of fraud, collusion or miscarriage of justice; Corney v Brien [1951] HCA 31 ; (1951) 84 CLR 343 at 357; Udovenko v Mitchell (1997) 79 FCR 418 at 421.
Case: Council of the City of Greater Wollongong v Cowan [1955] HCA 16 ; (1955) 93 CLR 435
Outcome: cited
Although the discretion conferred by s 27 is not expressed to be limited in any way, the principles that should guide the Court in its exercise are well established and uncontroversial. In general the Court must be satisfied that the evidence could not, with reasonable diligence, have been adduced at the trial; Council of the City of Greater Wollongong v Cowan [1955] HCA 16 ; (1955) 93 CLR 435 at 444. Moreover the evidence that was not presented at the trial must have sufficient probative value that it is likely to have produced a different result had it been presented at the trial; Guss v Johnstone [2000] FCA 1455 , Freeman v National Australia Bank Limited [2003] FCAFC 200.
Case: Guss v Johnstone [2000] FCA 1455
Outcome: cited
Although the discretion conferred by s 27 is not expressed to be limited in any way, the principles that should guide the Court in its exercise are well established and uncontroversial. In general the Court must be satisfied that the evidence could not, with reasonable diligence, have been adduced at the trial; Council of the City of Greater Wollongong v Cowan [1955] HCA 16 ; (1955) 93 CLR 435 at 444. Moreover the evidence that was not presented at the trial must have sufficient probative value that it is likely to have produced a different result had it been presented at the trial; Guss v Johnstone [2000] FCA 1455 , Freeman v National Australia Bank Limited [2003] FCAFC 200.
Case: Freeman v National Australia Bank Limited [2003] FCAFC 200
Outcome: cited
Although the discretion conferred by s 27 is not expressed to be limited in any way, the principles that should guide the Court in its exercise are well established and uncontroversial. In general the Court must be satisfied that the evidence could not, with reasonable diligence, have been adduced at the trial; Council of the City of Greater Wollongong v Cowan [1955] HCA 16 ; (1955) 93 CLR 435 at 444. Moreover the evidence that was not presented at the trial must have sufficient probative value that it is likely to have produced a different result had it been presented at the trial; Guss v Johnstone [2000] FCA 1455 , Freeman v National Australia Bank Limited [2003] FCAFC 200.