mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Commissioner of Taxation v Comcorp Australia Ltd (1996) 70 FCR 356
Outcome: discussed
Commissioner of Taxation v Comcorp Australia Ltd (1996) 70 FCR 356 Sheppard J (at 373E) (in dissent as to the result) expressed the opinion that only irregularities of a procedural kind are able to be cured by s 1322. Carr J (with whom Lockhart J agreed) seemed to proceed upon the same basis but took a wide view of matters which were essentially of a procedural nature (398 400). The issue that arises here does not appear to have been argued. In Jordan v Avram (1997) 141 FLR 275; (1997) 25 ACSR 153 Gillard J accepted that the conditions are not cumulative, relying upon Australian Hydrocarbons NL v Green (1985) 10 ACLR 72 at 83, but without noticing Comcorp. I have difficulty in seeing how the decision of Hodgson J in Australian Hydrocarbons establishes the proposition in question. However, in Re Westpac Banking Corporation , Emmett J, having referred to Comcorp , said (at [27]): 'I consider that the syntax of s 1322(6)(a) is quite clear in contemplating that only one of the three paragraphs of s 1322(6)(a) needs to be satisfied in order to authorise the making of an order.' Whilst the syntax of the provision is not as clear to me as it was to Emmett J, the appropriate course is to follow his Honour's decision, which was operative in the case before him, rather than what amounts to obiter dicta of the members of the Full Court in Comcorp . Judges of the Supreme Courts of New South Wales and Victoria have taken a view similar to that of Emmett J and consistency of decisions in this area is desirable. It was appropriate to make the order without any other party being joined. Each of ASIC and Australian Prudential Regulatory Authority (APRA) has been advised about the proceedings and neither has indicated any substantive opposition to the making of the order. There is no other natural contradictor. There was a second problem. One of the conditions of exemption was that the plaintiffs would not exercise votes attached to NAB shares nor control or influence the exercise of votes attached to NAB shares. This condition was breached on a number of occasions, essentially because of the operation of an automated proxy voting system in relation to the Annual General Meeting of NAB held on 30 January 2006. There have been substantial purchases of NAB shares by the plaintiffs since 30 January 2006.
Case: Cordiant Communications (Australia) Pty Ltd v Communications Group Holdings Pty Ltd [2005] NSWSC 1005 ; (2005) 194 FLR 322; (2005) 55 ACSR 185
Outcome: cited
Cordiant Communications (Australia) Pty Ltd v Communications Group Holdings Pty Ltd [2005] NSWSC 1005 ; (2005) 194 FLR 322; (2005) 55 ACSR 185, Palmer J expressed the opinion that s 1322(4) can be utilised to validate a substantive rather than a procedural irregularity ([97] and [134]) without referring to authority.
Case: Jordan v Avram (1997) 141 FLR 275; (1997) 25 ACSR 153
Outcome: cited
Jordan v Avram (1997) 141 FLR 275; (1997) 25 ACSR 153 Gillard J accepted that the conditions are not cumulative, relying upon Australian Hydrocarbons NL v Green (1985) 10 ACLR 72 at 83, but without noticing Comcorp. I have difficulty in seeing how the decision of Hodgson J in Australian Hydrocarbons establishes the proposition in question. However, in Re Westpac Banking Corporation , Emmett J, having referred to Comcorp , said (at [27]): 'I consider that the syntax of s 1322(6)(a) is quite clear in contemplating that only one of the three paragraphs of s 1322(6)(a) needs to be satisfied in order to authorise the making of an order.'
Case: Re Commonwealth Bank of Australia (2005) 57 ACSR 28
Outcome: cited
am satisfied that the circumstances are appropriate for an order to be made pursuant to s 1322(4)(a) ( Re Westpac Banking Corporation (2004) 53 ACSR 288; and Re Commonwealth Bank of Australia (2005) 57 ACSR 28) if the plaintiffs satisfy the conditions in s 1322(6). The relief sought assumes that non-compliance with the condition of exemption results in the exemption ceasing to operate. Emmett J took that view in Re Commonwealth Bank of Australia at [15] and ASIC takes the same view. On that basis, relief pursuant to s 1322(4)(a) is appropriate if the conditions pursuant to s 1322(6) are met. I am satisfied that the casting of the votes did not affect the result of the vote taken upon any resolution. I am satisfied that the relevant non-compliance was inadvertent and that the persons concerned acted honestly. I am satisfied that no substantial injustice has been or is likely to be caused to any person by the making of the order. I am also satisfied that it is just and equitable that the order be made. The conditions pursuant to s 1322(6) are satisfied. I am satisfied that it was appropriate to make the order in the absence of the joinder of another party. For those reasons I made the orders sought in substance. The orders followed the form of the section by validating the transactions. The effect of those orders is that the transactions are not void. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles. Associate: Dated: 18 October 2006 Counsel for the Plaintiffs: Mr MA Pembroke SC, Mr T Maltz Solicitor for the Plaintiffs: Mallesons Stephen Jaques Date of Hearing: 13 October 2006 Date of Orders: 17 October 2006 Date of Reasons for Judgment: 18 October 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1357.html
Case: Re Westpac Banking Corporation (2004) 53 ACSR 288
Outcome: followed
am satisfied that the circumstances are appropriate for an order to be made pursuant to s 1322(4)(a) ( Re Westpac Banking Corporation (2004) 53 ACSR 288; and Re Commonwealth Bank of Australia (2005) 57 ACSR 28) if the plaintiffs satisfy the conditions in s 1322(6). In Jordan v Avram (1997) 141 FLR 275; (1997) 25 ACSR 153 Gillard J accepted that the conditions are not cumulative, relying upon Australian Hydrocarbons NL v Green (1985) 10 ACLR 72 at 83, but without noticing Comcorp. I have difficulty in seeing how the decision of Hodgson J in Australian Hydrocarbons establishes the proposition in question. However, in Re Westpac Banking Corporation , Emmett J, having referred to Comcorp , said (at [27]): 'I consider that the syntax of s 1322(6)(a) is quite clear in contemplating that only one of the three paragraphs of s 1322(6)(a) needs to be satisfied in order to authorise the making of an order.'
Case: Avon Downs Pty Ltd v FCT [1949] HCA 26 ; (1949) 78 CLR 353
Outcome: followed
primary criterion in cl 679.224 to be met by the visa applicant is that the visa applicant satisfies the Minister that the expressed intention of the visa applicant only to visit Australia is genuine. Clearly reaching a level of satisfaction one way or the other is a factual issue. Notwithstanding this, the decision reached by the Minister as to whether he or she is satisfied is not unexaminable. As observed by Dixon J in Avon Downs Pty Ltd v FCT [1949] HCA 26 ; (1949) 78 CLR 353 at 360 in relation to the satisfaction (or not) of the Commissioner of Taxation in the circumstances of that case. If he does not address himself to the question which the subsection formulates, if his conclusion is affected by some mistake of law, if he takes some extraneous reason into consideration or excludes from consideration some factor which should affect his determination, on any of these grounds his conclusion is liable to review. (cf Gleeson CJ in Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 [2003] HCA 30 ; (2003) 198 ALR 59 at [8] )
Case: Craig v South Australia [1995] HCA 58 ; (1995) 184 CLR 163
Outcome: followed
generally, the Full Court recently observed in NAIS v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 1: [6] Just what constitutes jurisdictional error may be a matter of debate, at least at the margin. However, it is not in dispute that jurisdictional error will include the various categories referred to in the well-known passage from the judgment of Brennan, Deane, Toohey, Gaudron and McHugh JJ in Craig v South Australia [1995] HCA 58 ; (1995) 184 CLR 163 at 179 where their Honours, after noting the distinction between administrative tribunals on the one hand, with no power in a constitutional sense in Australia to exercise judicial power and courts which did exercise judicial power, said: If such an administrative tribunal falls into an error of law which cause it to identify a wrong issue, to ask itself a wrong question, to ignore circumstances, to make an erroneous finding or to reach a mistaken conclusion and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it. Proceedings in this Court
Case: NAIS v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 1
Outcome: followed
generally, the Full Court recently observed in NAIS v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 1: [6] Just what constitutes jurisdictional error may be a matter of debate, at least at the margin. However, it is not in dispute that jurisdictional error will include the various categories referred to in the well-known passage from the judgment of Brennan, Deane, Toohey, Gaudron and McHugh JJ in Craig v South Australia [1995] HCA 58 ; (1995) 184 CLR 163 at 179 where their Honours, after noting the distinction between administrative tribunals on the one hand, with no power in a constitutional sense in Australia to exercise judicial power and courts which did exercise judicial power, said: If such an administrative tribunal falls into an error of law which cause it to identify a wrong issue, to ask itself a wrong question, to ignore circumstances, to make an erroneous finding or to reach a mistaken conclusion and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it. Proceedings in this Court
Case: Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 [2003] HCA 30 ; (2003) 198 ALR 59
Outcome: followed
primary criterion in cl 679.224 to be met by the visa applicant is that the visa applicant satisfies the Minister that the expressed intention of the visa applicant only to visit Australia is genuine. Clearly reaching a level of satisfaction one way or the other is a factual issue. Notwithstanding this, the decision reached by the Minister as to whether he or she is satisfied is not unexaminable. As observed by Dixon J in Avon Downs Pty Ltd v FCT [1949] HCA 26 ; (1949) 78 CLR 353 at 360 in relation to the satisfaction (or not) of the Commissioner of Taxation in the circumstances of that case. If he does not address himself to the question which the subsection formulates, if his conclusion is affected by some mistake of law, if he takes some extraneous reason into consideration or excludes from consideration some factor which should affect his determination, on any of these grounds his conclusion is liable to review. (cf Gleeson CJ in Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 [2003] HCA 30 ; (2003) 198 ALR 59 at [8] )
Case: SZFNK v Minister for Immigration and Multicultural Affairs [2006] FCA 1601
Outcome: cited
while there is no obligation on the Court, in cases particularly involving a self-represented litigant it is open to the Court to identify other grounds of appeal which the litigant may have missed, but which present an arguable case. This practice is particularly apparent in migration matters where litigants are commonly not only self-represented, but frequently lack English language skills in attempting to address the Court in respect of an area of law of considerable difficulty. The position can be placed no higher I agree with the observations of Madgwick J in SZFNK v Minister for Immigration and Multicultural Affairs [2006] FCA 1601 at [4] - [5] that no obligation is imposed on the Court to investigate alternative grounds to advance the case of the self-represented litigant. "Satisfaction" of Minister
Case: Byrne v Australian Airlines Limited [1995] HCA 24 ; (1995) 185 CLR 410
Outcome: cited
In dealing with a situation where there was an award underpinning an individual contract of employment Brennan CJ, Dawson and Toohey JJ said in Byrne v Australian Airlines Limited [1995] HCA 24 ; (1995) 185 CLR 410 at 421: 'In a system of industrial regulation where some, but not all, of the incidents of an employment relationship are determined by award, it is plainly unnecessary that the contract of employment should provide for those matters already covered by the award. The contract may provide additional benefits, but cannot derogate from the terms and conditions imposed by the award and, ... the award operates with statutory force to secure those terms and conditions. Neither from the point of view of the employer nor the employee is there any need to convert those statutory rights and obligations to contractual rights and obligations. ...' (footnote omitted) 35 In his reasons for judgment Carr J said at [131]: '... As the High Court of Australia explained in Byrne v Australian Airlines Ltd [1995] HCA 24 ; (1995) 185 CLR 410 at 420 421 an award imposes certain statutory terms and conditions which do not necessarily displace underlying common law contractual relations. If they conflict, the award or certified agreement may modify the contractual provisions, but otherwise they continue to co-exist. Byrne involved an award, but there does not seem to be any relevant distinction, for present purposes, between an award and a certified agreement. ...' 36 In the case of the 2007 Agreement it displaced a pre-reform certified agreement and provided what I have referred to as an 'underpinning' for the individual contracts of employment of Karellas' employees. 37 The applicant's concerns in relation to the approval of the 2007 Agreement arise from two publications put around by Karellas in the period 19 27 April 2007. The first document is four pages in length. It is on the letterhead of Karellas and addressed to 'Dear Employee'. It is dated 19 April 2007. On the second page it has been signed by a Peter Smith as 'Operations Manager'. The second document is three pages in length. It is also on the letterhead of Karellas and addressed to 'Dear Employee'. It also bears the signature of Mr Smith as 'Operations Manager'. It is undated. Copies of the two documents are attached to these reasons for judgment as appendices 'A' and 'B' respectively.
Case: Ansett Transport Industries (Operations) Proprietary Limited v Wardley [1980] HCA 8 ; (1980) 142 CLR 237
Outcome: cited
To like effect, Wilson J said in Ansett Transport Industries (Operations) Proprietary Limited v Wardley [1980] HCA 8 ; (1980) 142 CLR 237 at 287 8: '... It will be seldom ... that an award will lend itself to the "covering the field" test of inconsistency on the subject of the contract of employment. Few, if any, awards reflect an intention to express completely, exhaustively or exclusively the law governing that contract between the parties. It will generally be a case of specific provisions which will, of course, have the effect of rendering inoperative any provisions of subordinate law, whether common law or statutory, touching that employment with which they are inconsistent. In Reg. v Industrial Court of South Australia; Ex parte General Motors-Holden's Pty. Ltd. Walters and Wells JJ., in a passage with which I respectfully agree, discuss the relationship of an award to the common law and to statute law and refer with approval to the following passage from Webb : Industrial Relations and the Contract of Employment ( 1974), p. 21: "The significance of the common law can be recognised if contracts of employment are seen to be stratified. First there is a foundation strata being the common law. Superimposed on this are State Acts, regulations and State industrial determinations; in places such State law cuts through and replaces the common law foundational strata. Above this again are Commonwealth Acts, regulations and awards of the Arbitration Commission. Federal law cuts through State law in places, sometimes at the point where State law has already cut through common law, sometimes direct into common law." Their Honours also refer, inter alia, to the remarks of Latham C.J. in Amalgamated Collieries of W.A. Ltd. v True .' (footnotes omitted)
Case: Quickenden v O'Connor [2001] FCA 303 ; (2001) 109 FCR 243
Outcome: cited
In relation to a pre-reform certified agreement serving as an underpinning instrument, such a situation was considered by a Full Court of this Court in Quickenden v O'Connor [2001] FCA 303 ; (2001) 109 FCR 243. At [69] Black CJ and French J said: 'The broad brush complaint that common law contractual rights were displaced by the certified agreement faced another threshold issue. For while the agreement bound Dr Quickenden by force of law, it did not thereby terminate his contract of employment. It created rights and obligations which were statutory in character and could operate in addition to the rights and obligations under his contract and, where inconsistent, no doubt displace them. There is nothing in the agreement however which expressly sets aside or displaces the terms of existing or common law rights generally. The agreement itself is not, on the face of it, and is not expressed to be, exhaustive of the rights and duties of those bound by it. If anything it focuses upon the rights of employees, rather than their obligations.'
Case: Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336
Outcome: referred to
The relevant standard of proof in the present case is that enunciated by Dixon J, as his Honour then was in Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336 ('Briginshaw') at 361-362 as follows: '... when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. ...' In Rejfek v McElroy [1965] HCA 46 ; (1965) 112 CLR 517 at 521-522 Barwick CJ, Kitto, Taylor, Menzies and Windeyer JJ said: 'But the standard of proof to be applied in a case and the relationship between the degree of persuasion of the mind according to the balance of probabilities and the gravity or otherwise of the fact of whose existence the mind is to be persuaded are not to be confused. The difference between the criminal standard of proof and the civil standard of proof is no mere matter of words: it is a matter of critical substance. No matter how grave the fact which is to be found in a civil case, the mind has only to be reasonably satisfied and has not with respect to any matter in issue in such a proceeding to attain that degree of certainty which is indispensable to the support of a conviction upon a criminal charge ...' In Briginshaw , Dixon J also said at 362: '... But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. ...'
Case: Rejfek v McElroy [1965] HCA 46 ; (1965) 112 CLR 517
Outcome: referred to
The relevant standard of proof in the present case is that enunciated by Dixon J, as his Honour then was in Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336 ('Briginshaw') at 361-362 as follows: '... when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. ...' In Rejfek v McElroy [1965] HCA 46 ; (1965) 112 CLR 517 at 521-522 Barwick CJ, Kitto, Taylor, Menzies and Windeyer JJ said: 'But the standard of proof to be applied in a case and the relationship between the degree of persuasion of the mind according to the balance of probabilities and the gravity or otherwise of the fact of whose existence the mind is to be persuaded are not to be confused. The difference between the criminal standard of proof and the civil standard of proof is no mere matter of words: it is a matter of critical substance. No matter how grave the fact which is to be found in a civil case, the mind has only to be reasonably satisfied and has not with respect to any matter in issue in such a proceeding to attain that degree of certainty which is indispensable to the support of a conviction upon a criminal charge ...' In Briginshaw , Dixon J also said at 362: '... But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. ...'