mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation [1981] HCA 26 ; (1981) 147 CLR 297
Outcome: cited
Nor does the language of the section suggest that, where there is more than one trust higher than the status-seeking trust, the higher trusts must be of the same level. The only requirement is that they be "of a higher level" than the status-seeking trust. For example, suppose trust A is on level (a). Since the section contemplates that there could be relevant trusts on as many as three levels higher, there could be a situation where trust B is on level (b), trust C is on level (c) and trust D is on level (d). Of each of trusts B, C and D it can be said that it is on a "higher" level than A's, that is to say on a level which has the quality or characteristic of being higher than (a). 9 At first blush, it may seem odd that the section provides that, where there is more than one trust, each must have fixed entitlements to all of the income and capital of the status-seeking trust. How can two or more each be entitled to all the income and capital? 10 The answer is to be found in the words "directly or indirectly". A fixed entitlement may be held indirectly where there is entitlement via interposed companies, partnerships or trusts: s 272-20. Thus, to take the example above, if trust B owns 100 percent of trust A and in turn trust C owns 100 per cent of trust B, and trust D owns 100 per cent of trust C, each of B, C and D has a fixed entitlement to all of the income and capital of A. In the case of B, it has its entitlement directly; each of C and D has its entitlement indirectly. 15 The ordinary and grammatical meaning of the section is as submitted by the Commissioner. The result could not be said to be arbitrary or capricious. To confer the benefit of the higher status only where the status-seeking subsidiary is wholly owned by the trust of that higher status is a rational legislative objective. That objective has been achieved in the language of the statute, which admits of only one meaning. The merits or otherwise of the objective are not a matter for the Court: Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation [1981] HCA 26 ; (1981) 147 CLR 297 at 304-305. 16 The appeal will be dismissed with costs, including reserved costs. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey. Associate: Dated: 29 April 2008 Counsel for the Applicant: T F Bathurst QC and S H P Steward Solicitor for the Applicant: Mallesons Stephen Jaques Counsel for the Respondent: P J Hanks QC and S Sharpley Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 21 April 2008 Date of Judgment: 29 April 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/557.html
Case: Australian Workers' Union of Employees, Queensland and Others v Etheridge Shire Council and Another (2008) 171 FCR 102
Outcome: discussed
20 August 2008, I delivered judgment in both of these matters, finding for the applicants in each case: Australian Workers' Union of Employees, Queensland and Others v Etheridge Shire Council and Another (2008) 171 FCR 102 ; (2008) 250 ALR 485 ; and (2008) 175 IR 383. At that time, I indicated that I would hear the parties as to costs in the matters. In proceedings QUD 481 of 2006, the applicants filed a submission on costs on 27 August 2008. On 3 September 2008, the first respondent filed submissions on costs, and on 5 September 2008, the applicants filed a submission in reply. In proceedings QUD 39 of 2007, the applicant filed submissions on costs on 27 August 2008, and on 3 September 2008, the first respondent filed submissions on costs. Those submissions were the same as had been filed in the other proceedings. Proceedings QUD 481 of 2006
Case: R v Commonwealth Court of Conciliation and Arbitration; Ex Parte Barrett [1945] HCA 50 ; (1945) 70 CLR 141
Outcome: referred to
addition to McJannet , Etheridge Shire Council also noted R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett [1945] HCA 50 ; (1945) 70 CLR 141 , where Latham CJ said at 154, " If a right claimed is conferred by or under a Federal statue, the claim arises under the statute. "
Case: Re McJannet; Ex parte Australian Workers' Union of Employees (Q) [No 2] (19970 [1997] HCA 40 ; 189 CLR 654
Outcome: cited
applicant in each proceeding submits that that proceeding is not a proceeding "arising under" the Workplace Relations Act and that therefore s 824 has no application. Each of the applicants relies on Re McJannet; Ex parte Australian Workers' Union of Employees (Q)[No 2] [1997] HCA 40 ; (1997) 189 CLR 654 ( McJannet ), which, the applicants assert, contains the relevant test. The High Court in McJannet said, at 656, that the test was " whether the right or the duty that is sought to be enforced owes its existence to a provision of the Act." The applicants submit that, as they sought declarations to the effect that the first respondent had no right under the Workplace Relations Act , to act as it did, s 824 has no application. The applicants do not address the contention by the first respondent in each proceeding, that the first respondent had a right pursuant to the Workplace Relations Act to enter into a Workplace Agreement with its employees, and register it pursuant to the Workplace Relations Act . The Etheridge Shire Council argues that it had asserted that it was "an employer" within the meaning of the Workplace Relations Act and was therefore entitled to register a Workplace Agreement with its employees pursuant to that Act. It was the denial of that asserted right by the respective applicants that led to the proceedings being instituted. The Etheridge Shire Council argues that a party need not, in the end result, be successful concerning a claim advanced by it, provided the claim advanced by it, or on which it relies, is a claim to a right that owes its existence to the provision of Workplace Relations Act . In addition to McJannet , Etheridge Shire Council also noted R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett [1945] HCA 50 ; (1945) 70 CLR 141 , where Latham CJ said at 154, " If a right claimed is conferred by or under a Federal statue, the claim arises under the statute. "
Case: Tristar Steering and Suspension Australia Ltd v Industrial Relations Commissioner of New South Wales (2007) 159 FCR 274
Outcome: cited
first respondent in this proceeding makes the same submissions as it did in QUD 481 of 2006, but argues, in addition, that the reliance by the State of Queensland on the judgment in Tristar Steering and Suspension Australia Ltd v Industrial Relations Commissioner of New South Wales (2007) 159 FCR 274 is distinguishable, it being said that that matter involved the invocation of s 109 of the Australian Constitution in the determination as to costs. QUD 481 of 2006 &amp; QUD 39 of 2007 In each proceeding, s 43 of the Federal Court of Australia Act 1976 (Cth) is the basis for any order as to costs: (1) ... the Court or a Judge has jurisdiction to award costs in all proceedings before the Court (including proceedings dismissed for want of jurisdiction) other than proceedings in respect of which any other Act provides that costs shall not be awarded. ... (2) Except as provided by any other Act, the award of costs is in the discretion of the Court or Judge. The first respondent submitted in each proceeding that it ought not to be ordered to pay costs because each proceeding was "a matter arising under the [Workplace Relations] Act" and therefore the specific exemption provided in s 824(1) applied.
Case: Re Georges; Midas Australia Pty Ltd (Administrators Appointed) [2009] FCA 38
Outcome: considered
task for the court was recently summarised by Kenny J in the following way, in Re Georges; Midas Australia Pty Ltd (Administrators Appointed) [2009] FCA 38 at para 11, as follows: The authorities establish that, where an application is made under section 439A(6) for an extension of time, the court must strike a balance between the expectation that the administration be conducted relatively speedily and summarily and the need to ensure that undue speed not prejudice sensible and constructive actions directed towards maximising the return for creditors and shareholders.
Case: Storm Financial Ltd v Commonwealth Bank of Australia [2008] FCA 1991
Outcome: cited
administrators report that the company, prior to its being placed in administration, had instituted proceedings in this Court against the Commonwealth Bank. The nature of those proceedings is described fully in a judgment delivered by Greenwood J, Storm Financial Ltd v Commonwealth Bank of Australia [2008] FCA 1991. An application was made in those proceedings for interlocutory injunctive relief as against the bank. His Honour, for the reasons that he gave on 24 December 2008, refused that application. The substantive proceedings remain on foot. In summary, the proceedings might be described as a claim for damages in respect of alleged contraventions of s 1041E and s 1041H of the Act by the bank in the despatch of correspondence to, and other communications with, clients of Storm Financial earlier in December 2008, which are said to contain false, misleading or deceptive statements. Following adjournments, the application for leave to appeal in respect of the interlocutory injunctive aspect of the proceeding is to be heard in this Court on 6 March 2009. The administrators report that they are presently in the process of seeking to form a view as to the prospects in respect of the substantive proceeding in the court. The position at the moment is that the administrators have not yet obtained legal advice on that subject. That is a matter that they are pursuing actively. The administrators also report, by way of Mr Worrell's affidavit, claims made by investors and clients and media coverage concerning the same and the prospect of the same. They are not yet in a position to give any further assistance to the Court or creditors concerning those claims. The administrators have already travelled to Townsville and undertaken considerable investigative work with Storm Financial's two chief financial officers, and also with the directors of Storm Financial. On 12 January 2009, in the exercise of the judgment consigned to them as administrators, the administrators determined to close Storm Financial's business. In so doing, they were sensitive to the effects such a course had on the employees. The administrators report that, though unpleasant, the decision was one which, having regard to the financial information that they had obtained, was necessary; indeed, it seems, almost inevitable.
Case: Camden v Commissioners of Inland Revenue [1914] 1 KB 641
Outcome: cited
I see no reason to doubt that the Macquarie Dictionary is 'a document the authority of which cannot reasonably be questioned' within the meaning of s 144. Judges regularly refer to authoritative dictionaries such as the Macquarie Dictionary for the purpose of determining or confirming the meaning of English words. Indeed, the common law rule is that evidence is not admissible for the purpose of interpreting ordinary English words ( Camden v Commissioners of Inland Revenue [1914] 1 KB 641; Cross on Evidence , 6 th Australian Edition at [11010]). It is unnecessary to give consideration here to whether this rule has survived the enactment of the Evidence Act . 28 It was open to the Federal Magistrate to refer to the above definitions. It goes without saying that it has always been open to the Minister's legal representatives to refer to them. 29 The above definitions of 'Sindh' and 'Sindhi' confirm that an assertion by a citizen of India that he is a Sindhi is an assertion of geographic significance; it is a statement that his, or his family's, geographic origin is in Sindh province which now forms part of Pakistan. The above definition of 'caste' confirms that an assertion by a Hindu that he is of a particular caste is an assertion of social significance; it is a statement as to the social class into which, as a Hindu, he was born. The Tribunal plainly understood that the appellant claimed to be of the Dalit caste and that Dalit is a low caste.
Case: CDJ v VAJ [1998] HCA 76 ; (1998) 197 CLR 172
Outcome: cited
Order 52 r 36 of the Federal Court Rules , subject to any dispensation from compliance (see O 1 r 8), governs the practice of the Court where further evidence is sought to be adduced on appeal. Ordinarily the Court requires an application to adduce further evidence on appeal to be supported by an affidavit that explains why the further evidence was not adduced below ( Fodare Pty Limited v Official Trustee in Bankruptcy [2000] FCA 1721). However, I accept the submissions of the appellant's legal representative that the circumstances in which this Court, in the exercise of its appellate jurisdiction, may receive evidence not adduced below are to be determined as a matter of statutory construction rather than by reference to common law principles ( CDJ v VAJ [1998] HCA 76 ; (1998) 197 CLR 172 per McHugh, Gummow and Callinan JJ esp at [100]-[102]). The interests of justice must always be the paramount consideration ( State of Queensland v JL Holdings Pty Ltd [1997] HCA 1 ; (1997) 189 CLR 146 at 155).
Case: Fodare Pty Limited v Official Trustee in Bankruptcy [2000] FCA 1721
Outcome: cited
Order 52 r 36 of the Federal Court Rules , subject to any dispensation from compliance (see O 1 r 8), governs the practice of the Court where further evidence is sought to be adduced on appeal. Ordinarily the Court requires an application to adduce further evidence on appeal to be supported by an affidavit that explains why the further evidence was not adduced below ( Fodare Pty Limited v Official Trustee in Bankruptcy [2000] FCA 1721). However, I accept the submissions of the appellant's legal representative that the circumstances in which this Court, in the exercise of its appellate jurisdiction, may receive evidence not adduced below are to be determined as a matter of statutory construction rather than by reference to common law principles ( CDJ v VAJ [1998] HCA 76 ; (1998) 197 CLR 172 per McHugh, Gummow and Callinan JJ esp at [100]-[102]). The interests of justice must always be the paramount consideration ( State of Queensland v JL Holdings Pty Ltd [1997] HCA 1 ; (1997) 189 CLR 146 at 155).
Case: MZWVH v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2006] FCA 1016
Outcome: cited
An appeal to this Court from the Federal Magistrates Court is an appeal by way of rehearing ( MZWVH v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2006] FCA 1016). Section 27 of the Federal Court of Australia Act 1976 (Cth) provides that, in an appeal, the Court should have regard to the evidence given in the proceeding out of which the appeal arose and has power, in its discretion, to receive further evidence.
Case: State of Queensland v JL Holdings Pty Ltd [1997] HCA 1 ; (1997) 189 CLR 146
Outcome: cited
Order 52 r 36 of the Federal Court Rules , subject to any dispensation from compliance (see O 1 r 8), governs the practice of the Court where further evidence is sought to be adduced on appeal. Ordinarily the Court requires an application to adduce further evidence on appeal to be supported by an affidavit that explains why the further evidence was not adduced below ( Fodare Pty Limited v Official Trustee in Bankruptcy [2000] FCA 1721). However, I accept the submissions of the appellant's legal representative that the circumstances in which this Court, in the exercise of its appellate jurisdiction, may receive evidence not adduced below are to be determined as a matter of statutory construction rather than by reference to common law principles ( CDJ v VAJ [1998] HCA 76 ; (1998) 197 CLR 172 per McHugh, Gummow and Callinan JJ esp at [100]-[102]). The interests of justice must always be the paramount consideration ( State of Queensland v JL Holdings Pty Ltd [1997] HCA 1 ; (1997) 189 CLR 146 at 155).
Case: ASIC v Rich &amp; Rich (2004) Fam LR 31,667
Outcome: cited
Family Court may set aside financial agreements in the circumstances provided by s 90K of the Family Law Act . Section 90K was inserted by the Family Law Amendment Act 2000 (Cth) following the decision of the Family Court in ASIC v Rich &amp; Rich (2004) Fam LR 31,667 where O'Ryan J found that the Family Court had no jurisdiction to set aside a binding financial agreement at the request of a third p arty. So far as relevant, s 90K provides: Circumstances in which court may set aside a financial agreement or termination agreement (1) A court may make an order setting aside a financial agreement or a termination agreement if, and only if, the court is satisfied that: ... (aa) a party to the agreement entered into the agreement: (i) for the purpose, or for purposes that included the purpose, of defrauding or defeating a creditor or creditors of the party; or (ii) with reckless disregard of the interests of a creditor or creditors of the party; or I note that, so far as is relevant, the intentions required to be established in the context of s 90K of the Family Law Act and s 121 of the Bankruptcy Act are different. Section 90K of the Family Law Act allows the Court to set aside a financial agreement if a party to the agreement entered the agreement for the purpose or for purposes that included the purpose of defrauding or defeating a creditor or creditors of the party , whereas s 121 of the Bankruptcy Act provides that a transfer is void as against a trustee in bankruptcy if, inter alia , entered with the main purpose of preventing the transferred property from becoming divisible among the transferor's creditors or hindering or delaying the process of making property available for division among the transferor's creditors. To that extent the provisions of the Family Law Act contemplate broader grounds for intervention than the provisions of s 121 of the Bankruptcy Act . In these proceedings the applicant's case as pleaded in his statement of claim falls squarely within the terms of s 121(1)(b) of the Bankruptcy Act , namely that the main purpose of the bankrupt in making the transfer was to prevent the Carrara property from becoming divisible among his creditors and to hinder or delay the process of making the Carrara property available for division among his creditors. Bankruptcy and Family Law Legislation Amendment Act 2005 (Cth) In 2005 both the Bankruptcy Act and the Family Law Act were amended by the Bankruptcy and Family Law Legislation Amendment Act 2005 (Cth).
Case: Banque Commerciale SA En Liquidation v Akhil Holdings Ltd [1990] HCA 11 ; (1990) 169 CLR 279
Outcome: cited
in relation to proposed Order 2 of the applicant's notice of motion I am persuaded by the respondent's submissions that she should be entitled an opportunity to replead her Defence in light of amendments to the applicant's statement of claim. I am not prepared to make an order as sought by the applicant in terms of Order 2 of its notice of motion. While at the hearing Mr McQuade for the applicant urged the Court that any amendment to the Defence should be very limited, nonetheless the function of pleadings is to state, with sufficient clarity, the case that must be met by the other party. In this way, pleadings serve to ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her and to define the issues for decision: Banque Commerciale SA En Liquidation v Akhil Holdings Ltd [1990] HCA 11 ; (1990) 169 CLR 279 at 286 per Mason CJ and Gaudron J (cf Dawson J at 296, Toohey J at 302-303). In my view it is appropriate to allow the respondents a reasonable time to serve a draft amended Defence, and to set a date for hearing submissions as to whether leave ought be granted for the Defence in a repleaded form. Any issues the applicant has in relation to the nature of any amendments to the Defence can be ventilated at that hearing. I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate: Dated: 23 July 2009 Counsel for the Applicant: Mr PP McQuade Solicitor for the Applicant: James Conomos Lawyers Counsel for the Respondent: Mr J Griffin QC and Mr F Forde Solicitor for the Respondent: Michael Sing Lawyers Date of Hearing: 31 March 2009 Date of Judgment: 23 July 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/778.html
Case: Coffey v Secretary, Department of Social Security [1999] FCA 375 ; (1999) 86 FCR 434
Outcome: cited
observed by the majority of the High Court in Williams v Spautz [1992] HCA 34 ; (1992) 174 CLR 509 at 518, it is well established that Australian superior courts have inherent jurisdiction to stay proceedings which are an abuse of process. So, a superior court has power to prevent an abuse of process when process is predominantly used as a means of obtaining an advantage for which the proceedings were not intended ( Williams v Spautz [1992] HCA 34 ; (1992) 174 CLR 509 at 521-522, 529, Goldsmith v Sperrings Ltd (1977) 1 WLR 478 , Metall &amp; Rohstoff AG v Donaldson Inc [1990] 1 QB 391). A manifestation of this principle can be seen in cases where a litigant, having been unsuccessful in respect of one application, seeks to bring substantially the same application in the same or another court ( Reichel v Magrath (1889) 14 App Cas 665 at 668-669, Williams v Hunt [1905] 1 KB 512 , Wilson v Commonwealth of Australia [1999] FCA 1308 at [11] - [12] ), Lindsey v Philip Morris Ltd [2004] FCA 797 , Coffey v Secretary, Department of Social Security [1999] FCA 375 ; (1999) 86 FCR 434). Second, in my view a more accurate articulation of the respondent's claim in these interlocutory proceedings is that the Federal Court lacks jurisdiction to deal with the applicant's claims, allegedly because the correct forum for the claim of the applicant is the Family Court, and because the applicant should have commenced proceedings pursuant to s 90K of the Family Law Act in the Family Court. Clearly this Court has power to permanently stay or dismiss proceedings where the Court has no jurisdiction because of lack of power, absence of legislative grant of jurisdiction, or otherwise ( Rahman v Director-General Department of Education &amp; Training [2005] NSWCA 285 , Ramsay v Accident Compensation Corporation [2007] NZCA 367 , Simundic v University of Newcastle [2007] FCA 676 , Mentyn v Westpac Banking Corporation [2003] FCA 1521 , Coffey v Secretary, Department of Social Security [1999] FCA 375 ; (1999) 86 FCR 434). A claim by a litigant that the court has no jurisdiction is however distinguishable from a claim that the litigation constitutes an abuse of process, unless of course the commencement of process for an improper purpose in the sense explained in Williams v Spautz [1992] HCA 34 ; (1992) 174 CLR 509 can also be identified. Absence of jurisdiction is commonly pleaded as an alternative to a claim for abuse of process. However even if I am wrong as to the basis of the respondent's claim in these interlocutory proceedings, the respondent has clearly contended that it was appropriate for the Court to permanently stay the substantive proceedings on the grounds that the proper course of the applicant in seeking to impugn the transfer of the Carrara property by Mr Jensen was to apply to the Family Court to have the entire financial agreement set aside pursuant to s 90K(1)(aa) of the Family Law Act . For reasons to which I now turn, I do not agree.