mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
Outcome: referred to
appellant submits that the Tribunal, in effect, put an onus on the appellant by requiring him to produce independent information in support of his evidence and that that was a jurisdictional error. He referred to SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 228 CLR 152 (" SZBEL ") at 164 [40]. This submission must be rejected. The Tribunal did not place an onus on the appellant, let alone an onus to produce independent information. In the passage to which I was referred, the Tribunal was simply making an observation about the lack of a particular type of evidence which one might have expected had the asserted fact been true. The Tribunal accepted a number of aspects of the appellant's account without the need for corroboration and it noted that the appellant's own evidence was clear that the police were unable to pursue the perpetrators, "because of a lack of identification, not a lack of willingness to do so". The appellant submits that the Tribunal failed to fulfil its obligation in s 425(1) of the Act in that it did not advise the appellant that the claimed connection between the police and the CPI(M) was an issue arising in relation to the decision under review. Again, he refers to SZBEL . This submission must be rejected. Nothing occurred before the Tribunal hearing which could have led the appellant to assume that the claimed connection between the police and the CPI(M) was not an issue before the Tribunal. I say that because the appellant did not raise the claimed connection before the hearing ( SZJUB v Minister for Immigration and Citizenship [2007] FCA 1486 at [21] per Bennett J; SZDTM v Minister for Immigration and Citizenship [2008] FCA 1258 at [72] per Dowsett J).
Case: SZDTM v Minister for Immigration and Citizenship [2008] FCA 1258
Outcome: cited
appellant submits that the Tribunal failed to fulfil its obligation in s 425(1) of the Act in that it did not advise the appellant that the claimed connection between the police and the CPI(M) was an issue arising in relation to the decision under review. Again, he refers to SZBEL . This submission must be rejected. Nothing occurred before the Tribunal hearing which could have led the appellant to assume that the claimed connection between the police and the CPI(M) was not an issue before the Tribunal. I say that because the appellant did not raise the claimed connection before the hearing ( SZJUB v Minister for Immigration and Citizenship [2007] FCA 1486 at [21] per Bennett J; SZDTM v Minister for Immigration and Citizenship [2008] FCA 1258 at [72] per Dowsett J).
Case: SZEJF v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 724
Outcome: cited
appellant submits that the Tribunal did not give proper, genuine and realistic consideration to the claimed link between the police and CPI(M). The Tribunal addressed the issue and stated its reasons for rejecting the appellant's allegation of a link. I do not think there is any substance in this submission, and therefore I do not need to address the question of the proper description of the Tribunal's obligation under s 414 of the Act to review the decision (see NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 ; (2004) 144 FCR 1 at 16 [50] - [51] ; SZEJF v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 724 at [39] per Rares J).
Case: SZFDV v Minister for Immigration and Citizenship (2007) 233 CLR 51
Outcome: applied
SZFDV v Minister for Immigration and Citizenship [2007] HCA 41 ; (2007) 233 CLR 51 , Gummow, Hayne and Crennan JJ (with whom Callinan J relevantly agreed) said (at 55 [14]): "As indicated in the reasons in SZATV, and as a general proposition to be applied to the circumstances of the particular case, it may be reasonable for the applicant for a protection visa to relocate in the country of nationality to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution."
Case: SZJUB v Minister for Immigration and Citizenship [2007] FCA 1486
Outcome: cited
appellant submits that the Tribunal failed to fulfil its obligation in s 425(1) of the Act in that it did not advise the appellant that the claimed connection between the police and the CPI(M) was an issue arising in relation to the decision under review. Again, he refers to SZBEL . This submission must be rejected. Nothing occurred before the Tribunal hearing which could have led the appellant to assume that the claimed connection between the police and the CPI(M) was not an issue before the Tribunal. I say that because the appellant did not raise the claimed connection before the hearing ( SZJUB v Minister for Immigration and Citizenship [2007] FCA 1486 at [21] per Bennett J; SZDTM v Minister for Immigration and Citizenship [2008] FCA 1258 at [72] per Dowsett J).
Case: Ascot Investments Pty Ltd v Harper [1981] HCA 1 ; (1981) 148 CLR 337
Outcome: referred to
As far as other discretionary reasons are concerned, the respondent submitted that one possible result of the proceedings in the Family Court is that that Court will make orders with respect to the Angas Street property that will only benefit the applicant's estate and, therefore, the creditors of the estate, if the applicant is bankrupt at the time the orders are made. Counsel for the respondent referred to authorities dealing with the Family Court's power to make orders affecting third parties. He referred to Ascot Investments Pty Ltd v Harper [1981] HCA 1 ; (1981) 148 CLR 337. Gibbs J (as his Honour then was) said (at 354-355): The position is, I think, different if the alleged rights, powers or privileges of the third party are only a sham and have been brought into being, in appearance rather than reality, as a device to assist one party to evade his or her obligations under the Act . Sham transactions may always be disregarded. Similarly, if a company is completely controlled by one party to a marriage, so that in reality an order against the company is an order against the party, the fact that in form the order appears to affect the rights of the company may not necessarily invalidate it.
Case: Cummings v Claremont Petroleum NL [1996] HCA 19 ; (1996) 185 CLR 124
Outcome: referred to
The principles which govern an application under s 178 are as follows: 1. Section 178 confers a "supervisory jurisdiction over the conduct of the trustee": Cummings v Claremont Petroleum NL [1996] HCA 19 ; (1996) 185 CLR 124 at 132 per Brennan CJ, Gaudron and McHugh JJ. The section confers on the Court a very wide discretion: McGoldrick v Official Trustee in Bankruptcy [1993] FCA 636 ; (1993) 47 FCR 547 at 552-553. 2. It is not necessary for an applicant for relief under the section to show that the trustee's decision was absurd, or unreasonable or taken in bad faith. The Court has a wide discretion to make such order as seems appropriate in the circumstances of the case: Re Tyndall; Ex parte Official Receiver (1977) 30 FLR 6 at 9-10; [1977] FCA 15 ; 17 ALR 182 at 186 per Deane J. At the same time, the Court will be slow to make orders which will have the effect of interfering in the day-to-day administration of a bankrupt's estate and, in cases involving an exercise of business or commercial judgment, will place considerable weight on the trustee's decision. Furthermore, a Court will not intervene under s 178 simply because the Judge forms a different view from that of the trustee. 3. An order may be made under s 178 even if the trustee's decision was correct on the material before him, if, for example, additional material is put before the Court. 4. The power to make orders under s 178 is not necessarily ousted by the presence of an alternative remedy. In any particular case, the presence of an alternative remedy may lead to an argument that the alternative procedure is a code for correcting alleged errors by a trustee. That was a possibility discussed by the Full Court of this Court in McGoldrick , although the argument did not succeed in that case. In almost all cases, the presence of an alternative remedy will be relevant to the exercise of a discretion under s 178 not to make an order. There is, with respect, an illuminating discussion of the relevant principles by French J in Macchia v Nilant [2001] FCA 7 ; (2001) 110 FCR 101. Counsel for the respondent in this case referred to McGoldrick and the argument that an alternative review procedure might be construed as a code excluding relief under s 178 , but by the time of their respective closing submissions both parties accepted that there is no alternative review procedure which might affect this application either as a matter of law or as a matter of discretion. The position taken by the parties is correct because the review procedure in Part VII , Division 2, Subdivision C relates to a trustee's decision to file a notice of objection (s 149K(1)) ; not a decision (or act or omission) by a trustee not to withdraw an objection.
Case: Eshelby v Federated European Bank Ltd [1932] 1 KB 254
Outcome: referred to
It was common ground between the parties that there had been an act, omission or decision of the respondent within s 178 and that that related to the non-withdrawal of the objections under s 149J. The applicant submitted that that occurred before the proceeding was commenced on 8 August 2007. First, he submitted that he wrote to the respondent by letter dated 6 August 2007 and asked him to withdraw the objections. The respondent submitted that he did not receive the letter at about this time. It is not necessary for me to resolve this factual dispute because on any view the respondent was entitled to a reasonable time to consider the request and he was not given it. Secondly, the applicant submitted that the fact that the respondent had not withdrawn the objections before the proceeding was commenced was an omission within s 178. I doubt whether that can be so in circumstances where there is no evidence of a request by the applicant or of a decision by the respondent under s 149J. The respondent submitted that he made a decision not to withdraw the objections on or about 13 March 2008 and that is evidenced by his affidavit sworn on that date. That was after the applicant had sworn his affidavit on 6 March 2008 exhibiting his income tax returns for the financial years ended 30 June 2001 to 30 June 2007 inclusive and filed and served that affidavit. In my opinion, that submission is correct. I do not think there is a problem with the rule in Eshelby v Federated European Bank Ltd [1932] 1 KB 254 bearing in mind the rules of this Court (Federal Court Rules O 13, rr 2(8) and 3A). 38 I should record also that neither party suggested that the respondent could not file the fifth notice of objection or that I could not take it into account even though it was filed after this proceeding was commenced. Nor was it suggested by either party that I could not take into account the fact that the applicant provided the income tax returns previously referred to on or about 6 March 2008. 39 As I have said, the applicant did not challenge the decision of the respondent to file the fourth and fifth notices of objection and his application proceeded on the basis that there were proper grounds for the objections in the fourth and fifth notices of objection at the time they were made.
Case: In re Condon; Ex parte James (1874) LR 9 Ch App 609
Outcome: referred to
As to the third issue, neither counsel made submissions about whether the respondent was entitled at law to use the sum of $4,217.67 to discharge a liability other than the liability identified by the payor. It is far from clear that he was: Halsbury's Laws of England (4 th ed) Vol 9 [956]-[960]. The applicant's counsel put a different argument and that was that even if the respondent was legally entitled to do what he did the respondent as an officer of the Court was bound to act fairly and he had not acted fairly by purporting to allocate the payment to a liability other than that identified by the payor. The applicant's counsel sought to invoke the principle in In re Condon; Ex parte James (1874) LR 9 Ch App 609 (see Re Clark (a bankrupt); Ex parte the trustee of the property of the bankrupt v Texaco Ltd [1975] 1 All ER 453; [1975] 1 WLR 559). I do not think that there is any room for the application of that principle in this case. The payment was not made by a third party but by the bankrupt and the payment was not made in circumstances of unfairness leading to the enrichment of the estate.
Case: McGoldrick v Official Trustee in Bankruptcy [1993] FCA 636 ; (1993) 47 FCR 547
Outcome: referred to
The principles which govern an application under s 178 are as follows: 1. Section 178 confers a "supervisory jurisdiction over the conduct of the trustee": Cummings v Claremont Petroleum NL [1996] HCA 19 ; (1996) 185 CLR 124 at 132 per Brennan CJ, Gaudron and McHugh JJ. The section confers on the Court a very wide discretion: McGoldrick v Official Trustee in Bankruptcy [1993] FCA 636 ; (1993) 47 FCR 547 at 552-553. 2. It is not necessary for an applicant for relief under the section to show that the trustee's decision was absurd, or unreasonable or taken in bad faith. The Court has a wide discretion to make such order as seems appropriate in the circumstances of the case: Re Tyndall; Ex parte Official Receiver (1977) 30 FLR 6 at 9-10; [1977] FCA 15 ; 17 ALR 182 at 186 per Deane J. At the same time, the Court will be slow to make orders which will have the effect of interfering in the day-to-day administration of a bankrupt's estate and, in cases involving an exercise of business or commercial judgment, will place considerable weight on the trustee's decision. Furthermore, a Court will not intervene under s 178 simply because the Judge forms a different view from that of the trustee. 3. An order may be made under s 178 even if the trustee's decision was correct on the material before him, if, for example, additional material is put before the Court. 4. The power to make orders under s 178 is not necessarily ousted by the presence of an alternative remedy. In any particular case, the presence of an alternative remedy may lead to an argument that the alternative procedure is a code for correcting alleged errors by a trustee. That was a possibility discussed by the Full Court of this Court in McGoldrick , although the argument did not succeed in that case. In almost all cases, the presence of an alternative remedy will be relevant to the exercise of a discretion under s 178 not to make an order. There is, with respect, an illuminating discussion of the relevant principles by French J in Macchia v Nilant [2001] FCA 7 ; (2001) 110 FCR 101. Counsel for the respondent in this case referred to McGoldrick and the argument that an alternative review procedure might be construed as a code excluding relief under s 178 , but by the time of their respective closing submissions both parties accepted that there is no alternative review procedure which might affect this application either as a matter of law or as a matter of discretion. The position taken by the parties is correct because the review procedure in Part VII , Division 2, Subdivision C relates to a trustee's decision to file a notice of objection (s 149K(1)) ; not a decision (or act or omission) by a trustee not to withdraw an objection.
Case: Re Clark (a bankrupt); Ex parte the trustee of the property of the bankrupt v Texaco Ltd [1975] 1 All ER 453; [1975] 1 WLR 559
Outcome: referred to
As to the third issue, neither counsel made submissions about whether the respondent was entitled at law to use the sum of $4,217.67 to discharge a liability other than the liability identified by the payor. It is far from clear that he was: Halsbury's Laws of England (4 th ed) Vol 9 [956]-[960]. The applicant's counsel put a different argument and that was that even if the respondent was legally entitled to do what he did the respondent as an officer of the Court was bound to act fairly and he had not acted fairly by purporting to allocate the payment to a liability other than that identified by the payor. The applicant's counsel sought to invoke the principle in In re Condon; Ex parte James (1874) LR 9 Ch App 609 (see Re Clark (a bankrupt); Ex parte the trustee of the property of the bankrupt v Texaco Ltd [1975] 1 All ER 453; [1975] 1 WLR 559). I do not think that there is any room for the application of that principle in this case. The payment was not made by a third party but by the bankrupt and the payment was not made in circumstances of unfairness leading to the enrichment of the estate.
Case: Stevens and Stevens [2007] FamCA 680
Outcome: referred to
He also referred to the decision of the Court of Appeal of the Family Court of Australia in Stevens and Stevens [2007] FamCA 680 at [100] per Finn J and at [255] per Warnick J. 78 The submission seems to me to depend on a number of assumptions, not all of which were addressed in submissions. However, I cannot rule it out as a possibility and it seems to be a discretionary reason in favour of allowing the administration of the estate to continue.
Case: Re the Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia; ex parte Lai Qin [1997] HCA 6 ; (1997) 186 CLR 622
Outcome: followed
my opinion the parties should be left to bear their own respective costs. There has not been an adjudication upon the merits and it is not possible to say what the ultimate outcome of the proceeding would have been. In all the circumstances, the test that is to be applied to the conduct of the antagonists is one of reasonableness in the light of the nature of the particular proceeding and all the circumstances. In Re the Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia; ex parte Lai Qin [1997] HCA 6 ; (1997) 186 CLR 622 , McHugh J said (at 625) that where both parties appear to have acted reasonably, the proper exercise of the discretion as to costs will usually be that the Court will make no order as to costs. Similarly, in Australian Securities Commission v Aust-Home Investments Limited [1993] FCA 585 ; (1993) 44 FCR 194 at 202-203, Hill J applied a test of reasonableness to the conduct of ASIC's predecessor, the Australian Securities Commission in respect of a discontinued proceeding under s 1323 of the Corporations Law and determined that each party should bear its own costs.
Case: Australian Securities Commission v Aust-Home Investments Limited [1993] FCA 585 ; (1993) 44 FCR 194
Outcome: followed
my opinion the parties should be left to bear their own respective costs. There has not been an adjudication upon the merits and it is not possible to say what the ultimate outcome of the proceeding would have been. In all the circumstances, the test that is to be applied to the conduct of the antagonists is one of reasonableness in the light of the nature of the particular proceeding and all the circumstances. In Re the Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia; ex parte Lai Qin [1997] HCA 6 ; (1997) 186 CLR 622 , McHugh J said (at 625) that where both parties appear to have acted reasonably, the proper exercise of the discretion as to costs will usually be that the Court will make no order as to costs. Similarly, in Australian Securities Commission v Aust-Home Investments Limited [1993] FCA 585 ; (1993) 44 FCR 194 at 202-203, Hill J applied a test of reasonableness to the conduct of ASIC's predecessor, the Australian Securities Commission in respect of a discontinued proceeding under s 1323 of the Corporations Law and determined that each party should bear its own costs.
Case: Australian Securities and Investments Commission v Krecichwost [2008] NSWSC 855 ; (2008) 219 FLR 235
Outcome: distinguished
Young CJ in Eq (as Young JA then was) observed in Australian Securities and Investments Commission v Krecichwost [2008] NSWSC 855 ; (2008) 219 FLR 235 in relation to a costs issue on an application under s 1323 , "[e]ach case must be decided on its own facts and merits" (at [27]). In that case, on which Mr Groves relies, his Honour ordered ASIC to pay the relevant defendant's costs. However, the circumstances were that ASIC had obtained ex-parte relief against the relevant defendant who consented to extensions of that relief. With respect, it is understandable that his Honour treated that defendant's costs as an incident of the costs of ASIC's investigation that ASIC should bear. The present proceeding is very different. ASIC did not seek ex parte relief; its application under s 1323 was resisted by Mr Groves and Ms Collins-Rubie; they and ASIC filed and served extensive affidavit evidence; the proceeding was fixed for final hearing; and even when, at the beginning of the hearing on 27 July 2009 it was clear that ASIC did not seek to pursue Perfection Too, Mr Groves and Ms Collins-Rubie wished the hearing to proceed. As at the beginning of the date fixed for the final hearing, the parties were still strongly in dispute. It was only progressively throughout the day that they reached agreement.
Case: Aitken Lilburn v Ernsthausen [1894] 1 QB 773
Outcome: cited
McGregor (from par 27-063) traces the development of the rule. The general rule as to the measure of damage is taken to have been stated and applied in Smith v M'Guire (1858) 3 H&amp;N 554; 157 E.R. 589, and as ascertained by the calculation of: ' ... the freight to be earned, and the deduction of the expenses which the shipowner would be put to in earning it; and what the ship earned (if anything) during the period which would have been occupied in performing the voyage, ought also to be deducted.' In that case Martin B expressed some doubt as to whether the shipowner was obliged to look for employment for his ship, but McGregor regards this as being wrong ' now that the rules as to mitigation have been worked out, and the contrary view is stated in later cases ' (at 27-065). Scrutton is of a similar opinion (at Art 192, p 389 footnote 31). McGregor refers to statements in Aitken Lilburn v Ernsthausen [1894] 1 QB 773 and Wallems Rederij A/S v Muller [1927] 2 KB 99, to the effect that the shipowner is bound to search out other cargo or otherwise he would not be able to recover full damages.
Case: Basma v Weekes [1950] AC 441
Outcome: cited
In the present case there was no qualification made by Dartbrook as to the capacity in which it contracted. The knowledge of a third party of the existence of the principal is not sufficient to excuse an agent from liability: Stanley Yeung Kai Yung v Hong Kong and Shanghai Banking Corporation [1981] AC 787 at 795. To do otherwise would permit oral evidence to contradict the written agreement: Basma v Weekes [1950] AC 441 at 451. In the present case there is nothing to suggest that the parties intended that Dartbrook not be liable as charterer. Even if one were to have regard to Hyundai MM's state of knowledge, it could not be assumed that it understood Dartbrook was not intended to have that liability. It merely knew that it was acting for the joint venture in connexion with its sale.
Case: Cobelfret (UK) Ltd v Austin and Butta (Sales) Pty Ltd (unreported, Supreme Court of New South Wales, Brownie J, 24 February 1988)
Outcome: distinguished
At the heart of the submissions for the defendants are the decisions in Cobelfret (UK) Ltd v Austin and Butta (Sales) Pty Ltd (unreported, Supreme Court of New South Wales, Brownie J, 24 February 1988); Cobelfret (UK) Ltd and Anor v Austen and Butta (Sales) Pty Ltd (unreported, Supreme Court of New South Wales Court of Appeal, Kirby P, Priestley JA, Meagher JA, 5 April 1991) (' Cobelfret '). It is submitted that that case involves the application of the normal rule to a case such as this and that it recognises that the plaintiff is under an obligation to seek alternative employment for the vessel which was intended to be used under the charter. This forms part of its proof of damage.