mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Minister for Immigration and Multicultural and Indigenous Affairs v VSAF [2005] FCAFC 73
Outcome: applied
its heart, this is a case where an applicant did not attend before the Tribunal and the Tribunal went on to determine the application on the basis of the material then to hand. It seems to me that the circumstances of the case before the Tribunal are not relevantly distinguishable from those which grounded the decision of the Full Court in Minister for Immigration and Multicultural and Indigenous Affairs v VSAF [2005] FCAFC 73 (VSAF). In that case, at para 24, the Full Court made reference to and followed an earlier Full Court decision, NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 (NAST). There, too, an Applicant had failed to attend a hearing and the Tribunal proceeded to make its decision without taking any further steps to enable him to attend. The Full Court in NAST held that this was a course that the Tribunal was entitled to adopt. That was followed by the Full Court in VSAF . Those decisions bind me, as they did the Federal Magistrate.
Case: NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208
Outcome: applied
that case, at para 24, the Full Court made reference to and followed an earlier Full Court decision, NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 (NAST). There, too, an Applicant had failed to attend a hearing and the Tribunal proceeded to make its decision without taking any further steps to enable him to attend. The Full Court in NAST held that this was a course that the Tribunal was entitled to adopt. That was followed by the Full Court in VSAF . Those decisions bind me, as they did the Federal Magistrate.
Case: Clyne v Deputy Commissioner of Taxation (1982) 42 ALR 703
Outcome: cited
In determining whether a bankruptcy notice could reasonably mislead a debtor the court is not confined to an examination of the notice; it may look at facts extraneous to the notice, including the terms of an earlier bankruptcy notice served on the debtor; see Re Wimborne; Ex parte the Debtor (1979) 24 ALR 494 (Lockhart J); Clyne v Deputy Commissioner of Taxation (1982) 42 ALR 703 (Lockhart J); Roufos v Andrea (1981) 57 FLR 10 at 15-16 (Deane, Fisher &amp; Fitzgerald JJ).
Case: Franks v Warringah Council [2003] FCA 1047 ; (2003) 131 FCR 287
Outcome: cited
The form prescribed by the Bankruptcy Regulations requires the notice to attach a copy of the judgment or order relied upon; see Reg 4.02 and Form 1; see also Franks v Warringah Council [2003] FCA 1047 ; (2003) 131 FCR 287 at [12] . 52 The schedule to Form 1 provides, in note 1, that if legal costs are claimed in the notice, a certificate of the assessed costs must be attached to the notice. The certificate is, upon filing in the office or registry of a court of competent jurisdiction, taken to be a judgment of that Court for the amount of the unpaid costs; Legal Profession Act , s 208J(3). 53 However, a certificate that sets out a determination of the costs assessor, without being filed in a court of competent jurisdiction, is not sufficient to found a bankruptcy notice; Franks at [27]. 54 Here, there was evidence in the affidavit of Mr Snelgrove filed on 5 July 2005 that judgment was entered in the Local Court on 22 June 2000. Also Ms Rachel Menassa's affidavit of 17 December 2004 deposes to the fact that a certificate of judgment was obtained from the Local Court on 22 June 2000 and she annexes that document to her affidavit. This was the backsheet from the Local Court with the attached costs certificate in the same form as was annexed to the bankruptcy notice. 55 It follows in my view that there was evidence before the Federal Magistrate that the costs certificate was filed in a court of competent jurisdiction. It is therefore taken to be a judgment of the Local Court and it was annexed to the bankruptcy notice. This was sufficient to found the notice. 56 Section 52(4) of the Act provides that a creditor's petition lapses twelve months after the date of presentation, unless before that time a sequestration order is made or the petition is dismissed or withdrawn. 57 Provision is made for an extension of the twelve month period but s 52(5) provides, expressly, for the extension to be obtained before the expiration of the initial twelve month period.
Case: Kleinwort Benson Australia Ltd v Crowl [1988] HCA 34 ; (1988) 165 CLR 71
Outcome: followed
The first question, that is, whether the defect or irregularity is formal, involves two levels of enquiry. These were stated by an earlier decision of the High Court in Kleinwort Benson Australia Ltd v Crowl [1988] HCA 34 ; (1988) 165 CLR 71, and applied in Adams at [25]ff. 31 The relevant enquiry is: does the bankruptcy notice fail to meet a requirement made essential by the Act or the Regulations; or could it reasonably mislead a debtor as to what is necessary to comply with the notice; see Kleinwort Benson at 79; Adams at [25].
Case: Makhoul v Barnes (1995) 60 FCR 572
Outcome: cited
However, the learned Federal Magistrate declined to exercise his discretion to go behind the judgment, satisfying himself that there was no substance in Mr Roskell's objection. It is true that in an appropriate case, where substantial reasons are shown, the Court may exercise a discretion to go behind the judgment debt; see Wren v Mahony [1972] HCA 5 ; (1972) 126 CLR 212 at 224-225; Makhoul v Barnes (1995) 60 FCR 572 at 580-582. But in the present case, no error has been demonstrated in the Federal Magistrate's determination of this question.
Case: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355
Outcome: referred to
Regulation 4.02 and Form 1 of the Bankruptcy Regulations 1996 (Cth) requires the bankruptcy notice to state the provision under which interest is being claimed. Here, interest was not being claimed on pre-judgment costs. Accordingly, I do not see how the Regulations contained any requirement with respect to this statement, let alone one which would strike down as invalid an act done in breach of it within the principles stated in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355 at [93] .
Case: Re Howell; Ex parte Commissioner of Taxation (1996) 70 FCR 261
Outcome: cited
A Full Court has stated in explicit terms that the life of a bankruptcy petition cannot be extended after the petition has lapsed; see Re Young; Ex parte Smith (1985) 5 FCR 204 (Bowen CJ, Sweeney and Lockhart JJ). Notwithstanding this, orders have been made extending a petition after the expiry date pursuant to the 'slip rule'; see for example Re Howell; Ex parte Commissioner of Taxation (1996) 70 FCR 261 (Burchett J). The authorities are summarised in the 5 th Edition of McDonald, Henry &amp; Meek Australian Bankruptcy Law &amp; Practice at [52.5.05].
Case: Re Wimborne; Ex parte the Debtor (1979) 24 ALR 494
Outcome: cited
In determining whether a bankruptcy notice could reasonably mislead a debtor the court is not confined to an examination of the notice; it may look at facts extraneous to the notice, including the terms of an earlier bankruptcy notice served on the debtor; see Re Wimborne; Ex parte the Debtor (1979) 24 ALR 494 (Lockhart J); Clyne v Deputy Commissioner of Taxation (1982) 42 ALR 703 (Lockhart J); Roufos v Andrea (1981) 57 FLR 10 at 15-16 (Deane, Fisher &amp; Fitzgerald JJ).
Case: Re Young; Ex parte Smith (1985) 5 FCR 204
Outcome: cited
A Full Court has stated in explicit terms that the life of a bankruptcy petition cannot be extended after the petition has lapsed; see Re Young; Ex parte Smith (1985) 5 FCR 204 (Bowen CJ, Sweeney and Lockhart JJ). Notwithstanding this, orders have been made extending a petition after the expiry date pursuant to the 'slip rule'; see for example Re Howell; Ex parte Commissioner of Taxation (1996) 70 FCR 261 (Burchett J). The authorities are summarised in the 5 th Edition of McDonald, Henry &amp; Meek Australian Bankruptcy Law &amp; Practice at [52.5.05].
Case: Roufos v Andrea (1981) 57 FLR 10
Outcome: cited
In determining whether a bankruptcy notice could reasonably mislead a debtor the court is not confined to an examination of the notice; it may look at facts extraneous to the notice, including the terms of an earlier bankruptcy notice served on the debtor; see Re Wimborne; Ex parte the Debtor (1979) 24 ALR 494 (Lockhart J); Clyne v Deputy Commissioner of Taxation (1982) 42 ALR 703 (Lockhart J); Roufos v Andrea (1981) 57 FLR 10 at 15-16 (Deane, Fisher &amp; Fitzgerald JJ).
Case: Wren v Mahony [1972] HCA 5 ; (1972) 126 CLR 212
Outcome: cited
However, the learned Federal Magistrate declined to exercise his discretion to go behind the judgment, satisfying himself that there was no substance in Mr Roskell's objection. It is true that in an appropriate case, where substantial reasons are shown, the Court may exercise a discretion to go behind the judgment debt; see Wren v Mahony [1972] HCA 5 ; (1972) 126 CLR 212 at 224-225; Makhoul v Barnes (1995) 60 FCR 572 at 580-582. But in the present case, no error has been demonstrated in the Federal Magistrate's determination of this question.
Case: Bassett v French 64 NY St Rep 292 (1895)
Outcome: applied
The principle I intend to apply is that if a plaintiff earns any money which he is not able to collect, he is not to be charged with that money. I have not been able to find any Anglo-Australian authority on point but I did come across a decision of the New York Court of Common Pleas that is in point. The case is Bassett v French 64 NY St Rep 292 (1895). The action was for damages for wrongful dismissal. As regards the assessment of damages Pryor J said of the plaintiff: "He was bound only to reasonable diligence in quest of other employment, and the proof is that he fulfilled the obligation. Having credited the defendant with every dollar he actually received, he is not responsible for money he earned but could not collect." [citations omitted] 31 Although consultancy fees were credited to Mr Hem's account in the books of SSSA, the fees were not paid, the company is no longer in business, and it is unlikely to have assets to discharge the debt. At least Mr Cant, on whom the onus falls, has not shown otherwise. Thus, there will therefore be no deduction from the claim. 32 The appeal will be allowed and Mr Cant will be directed to admit Mr Hem's proof for $75,000. On the question of costs, I think that Mr Hem should have them on a solicitor and client basis save for the costs incurred on 3 October 2006. Not only was Mr Hem successful on the appeal, on the evidence available to Mr Cant he had no basis for rejecting the proof. I have excluded the costs of 3 October 2006 because they were incurred when Mr Hem applied for and was granted leave to reopen his case and tender additional evidence. The costs of that day (also on a solicitor and client basis) should be borne by Mr Hem. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein. Associate: Dated: 9 February 2007 Counsel for the Plaintiff: Ms A Kaitinis Solicitor for the Plaintiff: John Curtain &amp; Associates Counsel for the Defendant: Mr A Sandbach Solicitor for the Defendant: Lennon Settle Mazzeo Solicitors Date of Hearing: 2 and 3 October 2006 Date of Judgment: 9 February 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/81.html
Case: Blaikie v SA Superannuation Board (1996) 65 SASR 85
Outcome: cited
As to the applicable principles I will refer to only two cases. The first is Easling v Mahoney Insurance Brokers Pty Ltd (2001) 78 SASR 489 a decision of the Full Court of the Supreme Court of South Australia. There Olsson J (who was in dissent on other grounds) said (at 514): "First it is necessary to address the concept of constructive dismissal. This was explored by me in some detail in Blaikie v SA Superannuation Board (1996) 65 SASR 85. I adhere to what I there said at pages 102-105. Suffice to reiterate that the notion of constructive dismissal implies the existence of conduct on the part of an employer which is plainly inimical to a continuance of a contract of employment according to its express or implied terms. The authorities establish the concept that there is implied in a contract of employment a term that the employer will not, without reasonable and proper cause, conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee. An intention to repudiate need not be proved. Rather, it is a matter of objectively looking at the employer's conduct as a whole and determining whether its effect, judged reasonably and sensibly, is such that the employee cannot be expected to put up with it."
Case: Caulfield v Broken Hill City Council (1995) 60 IR 211
Outcome: cited
This brings me to the quantum of Mr Hem's claim. It was not seriously disputed that Mr Hem was entitled to twelve months notice of termination. He had worked for the company for more than twenty years. He was its most senior employee. He received a salary of approximately $62,000 per annum together with a motor vehicle worth $15,000 per annum. He had put his own money into the company's business with the expectation of obtaining a 10 per cent interest. It was anticipated that he would remain with the company for the rest of his life. In the event he left, he would have difficulty finding alternative employment. Cases such as Dyer v Peverill [1979] 2 NTR 1; Quinn v Jack Chia (Australia) Ltd [2000] VSCA 75 ; [1992] 1 VR 567; O'Donnell v GIO Insurance Ltd (1996) 64 IR 297; Caulfield v Broken Hill City Council (1995) 60 IR 211; Rankin v Marine Power International Pty Ltd (2001) 107 IR 117 show that in these circumstances a reasonable period of notice would be twelve months.
Case: Courtaulds Northern Textiles Ltd v Anderson [1979] IRLR 84
Outcome: cited
As regards the application of the principles, there are several instances where a single incident of verbal abuse has given rise to a successful claim for constructive dismissal. So, in Isle of Wight Tourist Board v Coombes [1976] IRLR 413 a director said of his secretary: "She is an intolerable bitch on a Monday morning", leading Bristow J to find there had been a constructive dismissal. In Courtaulds Northern Textiles Ltd v Anderson [1979] IRLR 84 an assistant manager said to an employee: "You can't do the bloody job anyway", not believing this to be true. Again constructive dismissal was established. In Robinson v Compton Parkinson Ltd [1978] ICR 401 an employee who was falsely accused of theft was found to have been "constructively dismissed". Likewise in Moores v Bude-Stratton Town Council [2000] IRLR 676 where an employee was called: "a lying toe-rag".
Case: Dyer v Peverill [1979] 2 NTR 1
Outcome: cited
This brings me to the quantum of Mr Hem's claim. It was not seriously disputed that Mr Hem was entitled to twelve months notice of termination. He had worked for the company for more than twenty years. He was its most senior employee. He received a salary of approximately $62,000 per annum together with a motor vehicle worth $15,000 per annum. He had put his own money into the company's business with the expectation of obtaining a 10 per cent interest. It was anticipated that he would remain with the company for the rest of his life. In the event he left, he would have difficulty finding alternative employment. Cases such as Dyer v Peverill [1979] 2 NTR 1; Quinn v Jack Chia (Australia) Ltd [2000] VSCA 75 ; [1992] 1 VR 567; O'Donnell v GIO Insurance Ltd (1996) 64 IR 297; Caulfield v Broken Hill City Council (1995) 60 IR 211; Rankin v Marine Power International Pty Ltd (2001) 107 IR 117 show that in these circumstances a reasonable period of notice would be twelve months.
Case: Easling v Mahoney Insurance Brokers Pty Ltd (2001) 78 SASR 489
Outcome: applied
As to the applicable principles I will refer to only two cases. The first is Easling v Mahoney Insurance Brokers Pty Ltd (2001) 78 SASR 489 a decision of the Full Court of the Supreme Court of South Australia. There Olsson J (who was in dissent on other grounds) said (at 514): "First it is necessary to address the concept of constructive dismissal. This was explored by me in some detail in Blaikie v SA Superannuation Board (1996) 65 SASR 85. I adhere to what I there said at pages 102-105. Suffice to reiterate that the notion of constructive dismissal implies the existence of conduct on the part of an employer which is plainly inimical to a continuance of a contract of employment according to its express or implied terms. The authorities establish the concept that there is implied in a contract of employment a term that the employer will not, without reasonable and proper cause, conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee. An intention to repudiate need not be proved. Rather, it is a matter of objectively looking at the employer's conduct as a whole and determining whether its effect, judged reasonably and sensibly, is such that the employee cannot be expected to put up with it." 22 The second case is Thomson v Orica Australia Pty Ltd (2002) 116 IR 186. In that case Allsop J described constructive dismissal in the following terms: "Constructive dismissal is an unlawful termination of the contract of employment in circumstances where the employee leaves, without an express act or enunciation of 'dismissal' by the employer. It will be taken to be a dismissal (hence the word 'constructive') if the employer has behaved towards the employee in a way that entitles the employee to treat the employment as at an end. How that behaviour of the employer is to be described is at the heart of the matter. One difficulty in a simple enunciation of the common law principle is the existence of legislation and caselaw on closely related topics. However, if one is to approach the matter in straightforward contractual terms there is ample authority for the implication of a term in a contract of employment that the employer will not, without reasonable cause, conduct itself in a manner likely to damage or destroy the relationship of confidence and trust between the parties as employer and employee." [citations omitted] Allsop J went on to state that: "Breach of that implied term will entitle the employee to treat himself or herself as wrongfully dismissed. " He cited with approval the judgments of Olsson J in Blaikie v South Australian Superannuation Board and in Easling v Mahoney Insurance Brokers Pty Ltd which he said: "expressed the principle with clarity."
Case: Isle of Wight Tourist Board v Coombes [1976] IRLR 413
Outcome: cited
As regards the application of the principles, there are several instances where a single incident of verbal abuse has given rise to a successful claim for constructive dismissal. So, in Isle of Wight Tourist Board v Coombes [1976] IRLR 413 a director said of his secretary: "She is an intolerable bitch on a Monday morning", leading Bristow J to find there had been a constructive dismissal. In Courtaulds Northern Textiles Ltd v Anderson [1979] IRLR 84 an assistant manager said to an employee: "You can't do the bloody job anyway", not believing this to be true. Again constructive dismissal was established. In Robinson v Compton Parkinson Ltd [1978] ICR 401 an employee who was falsely accused of theft was found to have been "constructively dismissed". Likewise in Moores v Bude-Stratton Town Council [2000] IRLR 676 where an employee was called: "a lying toe-rag".
Case: Moores v Bude-Stratton Town Council [2000] IRLR 676
Outcome: cited
As regards the application of the principles, there are several instances where a single incident of verbal abuse has given rise to a successful claim for constructive dismissal. So, in Isle of Wight Tourist Board v Coombes [1976] IRLR 413 a director said of his secretary: "She is an intolerable bitch on a Monday morning", leading Bristow J to find there had been a constructive dismissal. In Courtaulds Northern Textiles Ltd v Anderson [1979] IRLR 84 an assistant manager said to an employee: "You can't do the bloody job anyway", not believing this to be true. Again constructive dismissal was established. In Robinson v Compton Parkinson Ltd [1978] ICR 401 an employee who was falsely accused of theft was found to have been "constructively dismissed". Likewise in Moores v Bude-Stratton Town Council [2000] IRLR 676 where an employee was called: "a lying toe-rag".
Case: O'Donnell v GIO Insurance Ltd (1996) 64 IR 297
Outcome: cited
This brings me to the quantum of Mr Hem's claim. It was not seriously disputed that Mr Hem was entitled to twelve months notice of termination. He had worked for the company for more than twenty years. He was its most senior employee. He received a salary of approximately $62,000 per annum together with a motor vehicle worth $15,000 per annum. He had put his own money into the company's business with the expectation of obtaining a 10 per cent interest. It was anticipated that he would remain with the company for the rest of his life. In the event he left, he would have difficulty finding alternative employment. Cases such as Dyer v Peverill [1979] 2 NTR 1; Quinn v Jack Chia (Australia) Ltd [2000] VSCA 75 ; [1992] 1 VR 567; O'Donnell v GIO Insurance Ltd (1996) 64 IR 297; Caulfield v Broken Hill City Council (1995) 60 IR 211; Rankin v Marine Power International Pty Ltd (2001) 107 IR 117 show that in these circumstances a reasonable period of notice would be twelve months.
Case: Quinn v Jack Chia (Australia) Ltd [2000] VSCA 75 ; [1992] 1 VR 567
Outcome: cited
This brings me to the quantum of Mr Hem's claim. It was not seriously disputed that Mr Hem was entitled to twelve months notice of termination. He had worked for the company for more than twenty years. He was its most senior employee. He received a salary of approximately $62,000 per annum together with a motor vehicle worth $15,000 per annum. He had put his own money into the company's business with the expectation of obtaining a 10 per cent interest. It was anticipated that he would remain with the company for the rest of his life. In the event he left, he would have difficulty finding alternative employment. Cases such as Dyer v Peverill [1979] 2 NTR 1; Quinn v Jack Chia (Australia) Ltd [2000] VSCA 75 ; [1992] 1 VR 567; O'Donnell v GIO Insurance Ltd (1996) 64 IR 297; Caulfield v Broken Hill City Council (1995) 60 IR 211; Rankin v Marine Power International Pty Ltd (2001) 107 IR 117 show that in these circumstances a reasonable period of notice would be twelve months.
Case: Rankin v Marine Power International Pty Ltd (2001) 107 IR 117
Outcome: cited
This brings me to the quantum of Mr Hem's claim. It was not seriously disputed that Mr Hem was entitled to twelve months notice of termination. He had worked for the company for more than twenty years. He was its most senior employee. He received a salary of approximately $62,000 per annum together with a motor vehicle worth $15,000 per annum. He had put his own money into the company's business with the expectation of obtaining a 10 per cent interest. It was anticipated that he would remain with the company for the rest of his life. In the event he left, he would have difficulty finding alternative employment. Cases such as Dyer v Peverill [1979] 2 NTR 1; Quinn v Jack Chia (Australia) Ltd [2000] VSCA 75 ; [1992] 1 VR 567; O'Donnell v GIO Insurance Ltd (1996) 64 IR 297; Caulfield v Broken Hill City Council (1995) 60 IR 211; Rankin v Marine Power International Pty Ltd (2001) 107 IR 117 show that in these circumstances a reasonable period of notice would be twelve months.