mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Ebert v Union Trustee Co of Australia Limited [1960] HCA 50 ; (1960) 104 CLR 346
Outcome: cited
It is true that the debtor need not adduce admissible evidence which would make out a prima facie case at a final hearing; but the Court must be satisfied by evidence that the claim has a reasonable prospect of success; Ebert v Union Trustee Co of Australia Limited [1960] HCA 50 ; (1960) 104 CLR 346 at 351; see also Re Glew at [9]. 34 Here, Mrs Maxwell-Smith's evidence shows "no more than that she propounds" a counter-claim or cross-demand; see Ebert at 350. 36 His Honour did not annul the bankruptcy on the ground of the debtors' solvency. Even if Mr and Mrs Maxwell-Smith were solvent at the time when the order was made, there is no evidence before me which could satisfy the test stated in Ebert as to the reasonableness of the asserted claim.
Case: Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27
Outcome: referred to
There is nothing to suggest that the bankruptcy was brought about by a malicious prosecution or a collateral abuse of process so as to give rise to a claim for damages within the principles stated by the High Court; see Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27 at [3] , and [209] [211]; see also Laferla v Birdon Sands Pty Limited (2005) Aust Tort Rep 81-786 at [121] [122]. 46 First, the bankruptcy notice seeks payment of a debt for a small amount of money based on a judgment debt which is over 5 years old. No satisfactory explanation has been given as to why the notice was issued after such a lengthy delay. It is true that the debt is not statute barred, but the right to pursue it by invoking the Court's processes must be subject to the operation of the principles respecting abuse of process; Batistatos at [62] [65].
Case: Laferla v Birdon Sands Pty Limited (2005) Aust Tort Rep 81-786
Outcome: referred to
There is nothing to suggest that the bankruptcy was brought about by a malicious prosecution or a collateral abuse of process so as to give rise to a claim for damages within the principles stated by the High Court; see Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27 at [3] , and [209] [211]; see also Laferla v Birdon Sands Pty Limited (2005) Aust Tort Rep 81-786 at [121] [122].
Case: Re Briggs; Ex Parte Briggs v Deputy Commissioner of Taxation (1986) 12 FCR 310
Outcome: cited
The Court's power to set aside a bankruptcy notice arises from s 30 of the Act . But the Act confers no general discretion to set aside a bankruptcy notice that is valid in form and not an abuse of process; Re Briggs; Ex Parte Briggs v Deputy Commissioner of Taxation (1986) 12 FCR 310 at 311 - 312; Re Athans; Ex Parte Athans (1991) 29 FCR 302 at 310; Australian Securities and Investments Commission v Forge [2003] FCAFC 274 ; (2004) 48 ACSR 474 at [27] .
Case: Re Athans; Ex Parte Athans (1991) 29 FCR 302
Outcome: cited
The Court's power to set aside a bankruptcy notice arises from s 30 of the Act . But the Act confers no general discretion to set aside a bankruptcy notice that is valid in form and not an abuse of process; Re Briggs; Ex Parte Briggs v Deputy Commissioner of Taxation (1986) 12 FCR 310 at 311 - 312; Re Athans; Ex Parte Athans (1991) 29 FCR 302 at 310; Australian Securities and Investments Commission v Forge [2003] FCAFC 274 ; (2004) 48 ACSR 474 at [27] .
Case: Australian Securities and Investments Commission v Forge [2003] FCAFC 274 ; (2004) 48 ACSR 474
Outcome: cited
The Court's power to set aside a bankruptcy notice arises from s 30 of the Act . But the Act confers no general discretion to set aside a bankruptcy notice that is valid in form and not an abuse of process; Re Briggs; Ex Parte Briggs v Deputy Commissioner of Taxation (1986) 12 FCR 310 at 311 - 312; Re Athans; Ex Parte Athans (1991) 29 FCR 302 at 310; Australian Securities and Investments Commission v Forge [2003] FCAFC 274 ; (2004) 48 ACSR 474 at [27] .
Case: Amos v Brisbane TV Limited [2000] FCA 825 ; (2000) 100 FCR 82
Outcome: cited
It follows from this that the Court does have power to set aside a bankruptcy notice which can be characterised as an abuse of process; Amos v Brisbane TV Limited [2000] FCA 825 ; (2000) 100 FCR 82 at [21] .
Case: Brunninghausen v Glavanics [1998] FCA 230
Outcome: cited
If it is apparent to the Court that the purpose of a bankruptcy notice is to put pressure on a debtor to pay a debt, rather than to invoke the Court's insolvency jurisdiction, the issuing of the bankruptcy notice will be an abuse of process; Brunninghausen v Glavanics [1998] FCA 230 ; see also Re Sarina; Ex parte Wollondilly Shire Council (1980) 43 FLR 163 at 166.
Case: Re Sarina; Ex parte Wollondilly Shire Council (1980) 43 FLR 163
Outcome: cited
If it is apparent to the Court that the purpose of a bankruptcy notice is to put pressure on a debtor to pay a debt, rather than to invoke the Court's insolvency jurisdiction, the issuing of the bankruptcy notice will be an abuse of process; Brunninghausen v Glavanics [1998] FCA 230 ; see also Re Sarina; Ex parte Wollondilly Shire Council (1980) 43 FLR 163 at 166.
Case: Slack v Bottoms English Solicitors [2002] FCA 1445
Outcome: cited
However, it is not an abuse of process if a creditor genuinely intends to pursue the matter if there is default in complying with the notice and there is no evidence of collateral purpose or undue pressure; Slack v Bottoms English Solicitors [2002] FCA 1445 at [15] [21]. 45 In my view, it is to be inferred from the factual matrix set out above that S &amp; E Hall's purpose in issuing the bankruptcy notice was to put pressure on Mrs Maxwell-Smith to pay the debt rather than to genuinely invoke the Court's bankruptcy jurisdiction. This inference arises from the following.
Case: Ellis v Wallsend District Hospital (1989) 17 NSWLR 553
Outcome: cited
In those circumstances I am entitled to reject Mr Hall's evidence, even though he was not cross-examined on it; Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 at 587-588. 52 Accordingly, I propose to set aside the bankruptcy notice as an abuse of process.
Case: Corney v Brien [1951] HCA 31 ; (1951) 84 CLR 343
Outcome: cited
It is well established that the Court has a discretion to go behind a judgment debt to see whether there is in truth a debt due to the petitioning creditor; Corney v Brien [1951] HCA 31 ; (1951) 84 CLR 343 at 347. 54 However, here there was nothing put before me to enliven the exercise of the discretion to go behind the debt. Indeed, it is plain that there is no reason to go behind the judgment. 55 The judgment debt arose from the costs order of the High Court. Mrs Maxwell-Smith appeared, in person with her husband, to seek special leave. She was named as a party to the special leave application. That is sufficient to meet any suggestion that her failure to sign the building contract avoids liability for the costs order.
Case: Fenner v Repatriation Commission (2005) 218 ALR 122
Outcome: cited
effect, the applicant submits that s 119(1)(h) should be construed as requiring the Tribunal to accept the applicant's claims simply because he has made them. That is not the correct approach to the section. See Fenner v Repatriation Commission (2005) 218 ALR 122 at [26]-[29]. There is nothing in this ground of appeal. Ground (b) - Section 120 The applicant submits that the Tribunal wrongly concluded that his handling of casualty lists did not constitute a severe stressor within the meaning of the SoP. The Tribunal considered that a person with the applicant's background and experience, "even one with a relative who had been hurt in the past would not have regarded the experience of reading casualty lists as a severe stressor of a kind or magnitude of the other examples given in the definition." (Original emphasis.) There is no requirement in the SoP that a veteran regard the relevant experience as being a severe stressor.
Case: Repatriation Commission v Constable (2006) 151 FCR 391
Outcome: applied
Repatriation Commission v Constable (2006) 151 FCR 391 at [42]-[50] the Full Court held that an experience falling within any of these categories will be a severe stressor. In the present case, the Tribunal should have considered whether his handling of the casualty lists fell within either the first or third category. This is not quite the point raised by the applicant. However the thrust of his submission is that exposure to the casualty lists was capable of being a stressor, taking into account his peculiar circumstances. In my view, on the evidence, it was capable of being a stressor even without those circumstances. With respect to the Saigon incident, the applicant submits that in applying s 120 the Tribunal failed to take into account the provisions of s 119(1)(h). I have already dealt with this submission in connection with the first ground of appeal. It is not necessary that I say any more about it. I turn to the applicant's anxiety condition. Paragraph 5(a) of the SoP required that the applicant was suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence. Paragraph 5(c) required that he was suffering from such a disorder at the time of any clinical worsening of his alcohol dependence. The Tribunal concluded that the applicant "was already locked in a pattern of maladaptive alcohol use by the time he arrived in Vietnam", that is prior to his operational service and prior to the onset of his anxiety condition. It has been accepted that the applicant's anxiety condition was war-caused. Curiously, such acceptance seems to have been based on the Saigon incident, evidence of the occurrence of which was rejected by the Tribunal in considering his alcohol dependence.
Case: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397
Outcome: referred to
There can, in my view, be no doubt that the decision, which is the subject of this purported appeal, was interlocutory in nature: Han v Minister for Immigration and Multicultural Affairs [2006] FCA 1426 at [10] and the cases therein cited. As a result the applicants require leave to appeal before any appeal could be prosecuted in this Court: see s 24(1A) of the Federal Court of Australia Act 1976 (Cth). The notice of appeal filed on 11 July 2006, does not, in terms, constitute an application for leave. Any application for leave, now made, would be out of time: see O 52 r 5 of the Federal Court Rules . I note in this regard that the applicants are not legally represented and appear to have no appreciation of the interlocutory nature of the Federal Magistrates' decision or of the need to obtain leave to appeal from it. In other circumstances it might well have been appropriate to rule, that the notice of appeal should be treated, as incorporating an application for leave to appeal on the grounds therein contained. However, in this case nothing would, in my opinion, be gained by doing so. This is because the grounds being pursued by the applicants in this Court could not avail them at an appeal hearing. Moreover, leave would not be granted because the Federal Magistrates' decision is not attended with sufficient doubt to warrant it being reconsidered: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397.
Case: Han v Minister for Immigration and Multicultural Affairs [2006] FCA 1426
Outcome: followed
There can, in my view, be no doubt that the decision, which is the subject of this purported appeal, was interlocutory in nature: Han v Minister for Immigration and Multicultural Affairs [2006] FCA 1426 at [10] and the cases therein cited. As a result the applicants require leave to appeal before any appeal could be prosecuted in this Court: see s 24(1A) of the Federal Court of Australia Act 1976 (Cth). The notice of appeal filed on 11 July 2006, does not, in terms, constitute an application for leave. Any application for leave, now made, would be out of time: see O 52 r 5 of the Federal Court Rules . I note in this regard that the applicants are not legally represented and appear to have no appreciation of the interlocutory nature of the Federal Magistrates' decision or of the need to obtain leave to appeal from it. In other circumstances it might well have been appropriate to rule, that the notice of appeal should be treated, as incorporating an application for leave to appeal on the grounds therein contained. However, in this case nothing would, in my opinion, be gained by doing so. This is because the grounds being pursued by the applicants in this Court could not avail them at an appeal hearing. Moreover, leave would not be granted because the Federal Magistrates' decision is not attended with sufficient doubt to warrant it being reconsidered: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397.
Case: Minister for Immigration and Citizenship v SZKKC 96 ALD 25
Outcome: considered
This is an application for leave to appeal from a judgment of Federal Magistrate Emmett on 21 May 2007 dismissing an application for review of a decision of the Migration Review Tribunal on the basis that, because of the time limit imposed, the Federal Magistrates Court did not have jurisdiction to deal with the matter. Subsequent to her Honour's decision, the law was clarified by a Full Court of this Court in the case of Minister for Immigration and Citizenship v SZKKC 96 ALD 25. The effect of the Full Court's decision is that the decision of the Federal Magistrate is now regarded as affected by legal error in relation to its consideration of s 477 of the Migration Act 1958 (Cth). 2 The question which then arises is whether, having regard to all the circumstances, it would be futile to remit the matter back to the Federal Magistrate or the Migration Review Tribunal for determination according to law. The jurisdictional obstacles which may render remittal futile arise from the facts, first, that it was not open to the Minister to grant the applicant's visa application because a condition precedent was that at the time of decision a nomination of the occupational training was not lodged, and secondly, that the application for review by the Migration Review Tribunal was out of time. The relevant provision is subclass 442.22 of schedule 2 of the Migration Regulations 1994 (Cth). 3 In view of the fact that these insuperable obstacles exist, in my view no useful purpose would be served by referring the matter back to the Federal Magistrate or the Migration Review Tribunal. Accordingly, in this case I am satisfied that the application for leave to appeal which has been lodged should be dismissed. The order of the court is that the application for leave to appeal is dismissed. 4 In all the circumstances, I am not disposed to make an order for costs against the applicant. The law has changed subsequent to the decision by the Federal Magistrate, and although that doesn't affect the outcome in this case, nevertheless it does not seem to be a matter where costs would be appropriate. I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin. Associate: Dated: 7 November 2007 Counsel for the Respondent: Ms M Mafessanti Solicitor for the Respondent: Clayton Utz Date of Hearing: 5 November 2007 Date of Judgment: 5 November 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1695.html
Case: Cubillo v Commonwealth [2001] FCA 1213 ; (2001) 183 ALR 249
Outcome: referred to
It is well recognised that the Court may allow a ground of appeal even where that ground was not raised in the Court or Tribunal below but only where all of the relevant facts have been established beyond controversy or where the point is one of construction or a point of law: Water Board v Moustakas (1988) 77 ALR 193 at 196; Federal Commissioner of Taxation v Brambles Holdings Ltd (1991) 28 FCR 451; Cubillo v Commonwealth [2001] FCA 1213 ; (2001) 183 ALR 249. The first respondent conceded that the point could not have been met by any evidence had it been raised below but that the proposed ground was without merit and accordingly leave should be refused. It is necessary therefore to consider whether it is "expedient in the interests of justice" to allow the new ground to be argued and determined: H v Minister for Immigration &amp; Multicultural Affairs [2000] FCA 1348 at [6] .
Case: Federal Commissioner of Taxation v Brambles Holdings Ltd (1991) 28 FCR 451
Outcome: referred to
It is well recognised that the Court may allow a ground of appeal even where that ground was not raised in the Court or Tribunal below but only where all of the relevant facts have been established beyond controversy or where the point is one of construction or a point of law: Water Board v Moustakas (1988) 77 ALR 193 at 196; Federal Commissioner of Taxation v Brambles Holdings Ltd (1991) 28 FCR 451; Cubillo v Commonwealth [2001] FCA 1213 ; (2001) 183 ALR 249. The first respondent conceded that the point could not have been met by any evidence had it been raised below but that the proposed ground was without merit and accordingly leave should be refused. It is necessary therefore to consider whether it is "expedient in the interests of justice" to allow the new ground to be argued and determined: H v Minister for Immigration &amp; Multicultural Affairs [2000] FCA 1348 at [6] .
Case: H v Minister for Immigration &amp; Multicultural Affairs [2000] FCA 1348
Outcome: cited
It is well recognised that the Court may allow a ground of appeal even where that ground was not raised in the Court or Tribunal below but only where all of the relevant facts have been established beyond controversy or where the point is one of construction or a point of law: Water Board v Moustakas (1988) 77 ALR 193 at 196; Federal Commissioner of Taxation v Brambles Holdings Ltd (1991) 28 FCR 451; Cubillo v Commonwealth [2001] FCA 1213 ; (2001) 183 ALR 249. The first respondent conceded that the point could not have been met by any evidence had it been raised below but that the proposed ground was without merit and accordingly leave should be refused. It is necessary therefore to consider whether it is "expedient in the interests of justice" to allow the new ground to be argued and determined: H v Minister for Immigration &amp; Multicultural Affairs [2000] FCA 1348 at [6] .
Case: Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
Outcome: cited
As to the merits, in my opinion, the proposed second ground cannot succeed. I accept the submissions of the first respondent which were to the following effect. The appellant was given the opportunity to appear before the Tribunal and put such information before it as she wished. In circumstances where the appellant failed to attend her hearing, she cannot complain if her application was rejected because amongst other reasons, she failed to take up the opportunity: S58 of 2003 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 283 at [26] . See also NAVX v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCA 346 at [10] - [12] , upheld on appeal in NAVX v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 287 at [5] ; SZDJT v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCA 214. There is no substance to her claim that the Tribunal failed to consider the information in the appellant's case. The Tribunal was simply not satisfied as to the applicable criteria: Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 ; SJSB v Minister for Immigration [2004] FCAFC 215 ; and SZBCS v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCA 1457.
Case: Minister for Immigration &amp; Ethnic Affairs v Guo [1997] HCA 22 ; (1997) 191 CLR 559
Outcome: cited
In my opinion, the learned Federal Magistrate correctly held that it was for the applicant to establish her case before the Tribunal: Minister for Immigration &amp; Ethnic Affairs v Guo [1997] HCA 22 ; (1997) 191 CLR 559 at 596. She failed to do so. The applicant was invited by the learned Federal Magistrate to provide details in support of that ground but she did not do so.
Case: Minister for Immigration &amp; Multicultural Affairs v SGLB [2004] HCA 32 ; (2004) 207 ALR 12
Outcome: cited
Where the Tribunal was unable to be satisfied upon the material before it that the appellant's claims are genuine it has no duty to make further enquiries: Minister for Immigration &amp; Multicultural Affairs v SGLB [2004] HCA 32 ; (2004) 207 ALR 12; VCAK of 2002 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCA 459 at [27] ; WAGJ of 2002 v Minister for Immigration &amp; Multicultural Affairs [2002] FCAFC 277 at [21] , [24]-[25]; W389/01A v Minister for Immigration &amp; Multicultural Affairs [2002] FCAFC 432 ; (2002) 125 FCR 407 at [74] - [78] ; NAYU v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCA 528 at [18] - [21] .
Case: NAVX v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCA 346
Outcome: cited
As to the merits, in my opinion, the proposed second ground cannot succeed. I accept the submissions of the first respondent which were to the following effect. The appellant was given the opportunity to appear before the Tribunal and put such information before it as she wished. In circumstances where the appellant failed to attend her hearing, she cannot complain if her application was rejected because amongst other reasons, she failed to take up the opportunity: S58 of 2003 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 283 at [26] . See also NAVX v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCA 346 at [10] - [12] , upheld on appeal in NAVX v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 287 at [5] ; SZDJT v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCA 214. There is no substance to her claim that the Tribunal failed to consider the information in the appellant's case. The Tribunal was simply not satisfied as to the applicable criteria: Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 ; SJSB v Minister for Immigration [2004] FCAFC 215 ; and SZBCS v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCA 1457.
Case: NAVX v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 287
Outcome: cited
As to the merits, in my opinion, the proposed second ground cannot succeed. I accept the submissions of the first respondent which were to the following effect. The appellant was given the opportunity to appear before the Tribunal and put such information before it as she wished. In circumstances where the appellant failed to attend her hearing, she cannot complain if her application was rejected because amongst other reasons, she failed to take up the opportunity: S58 of 2003 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 283 at [26] . See also NAVX v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCA 346 at [10] - [12] , upheld on appeal in NAVX v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 287 at [5] ; SZDJT v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCA 214. There is no substance to her claim that the Tribunal failed to consider the information in the appellant's case. The Tribunal was simply not satisfied as to the applicable criteria: Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 ; SJSB v Minister for Immigration [2004] FCAFC 215 ; and SZBCS v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCA 1457.