mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Casali v Crisp [2001] NSWSC 860 ; (2001) 165 FLR 79
Outcome: cited
The next question to be addressed is whether the first plaintiff is a person aggrieved by the deregistration. The first plaintiff was the director and company secretary, but not a shareholder of ACMF. Although the expression 'person aggrieved' is not defined in the Corporations Act , the term is understood in a different sense to its literal meaning. A person aggrieved is not someone who is merely dissatisfied by an event. A person aggrieved must be a person who has been damaged or injured in a legal sense: a person who has a legal grievance: Ealing Corporation v Jones [1959] 1 QB 384 at 391; Re G A &amp; R J Elliot Pty Ltd; ex parte Mitcham (1978) 3 ACLR 523 at 525; GIS Electrical Pty Ltd v Melsom [2002] WASCA 302 ; (2002) 172 FLR 218. The applicant contended that merely being a director is not enough: Casali v Crisp [2001] NSWSC 860 ; (2001) 165 FLR 79. 53 The fact that Claremont is a shareholder is not of itself enough to make Claremont a person aggrieved. However, if a shareholder can show that the shareholder might benefit from reinstatement by sharing in the assets of the company or obtaining a dividend of some kind that may make the shareholder a person aggrieved: Casali v Crisp [2001] NSWSC 860 ; 165 FLR 79. In this case, ACMF, if reregistered, has the potential of obtaining a judgment in the order of $290,000 with a consequential return to the shareholder, Claremont. In my opinion, Claremont is a person aggrieved because it will stand to benefit by ACMF's reregistration which allows it to prosecute its proceedings in the District Court. It will benefit if the litigation is successful to the extent of $290,000. It is not to the point, in my opinion, that Claremont is the trustee of the Callegher Family Trust and, as such, would not benefit in its own right if the action were successful. It has the responsibilities of a trustee to maintain the trust assets. The shareholding in ACMF has a significant value if the proceedings in the District Court are successful. In those circumstances, Claremont has the responsibility as trustee of maintaining that asset, being the shareholding in ACMF. 54 It was contended that the sale of the shares by ACMF to Mr De Angelis was completed on 3 March 2004 and Claremont did not become a shareholder in ACMF until 21 October 2004. It was contended, in those circumstances, that Claremont did not have a relevant interest in ACMF. That contention must be rejected. It is not to the point that Claremont did not become a shareholder in ACMF until after the loan was made by ACMF to Mr De Angelis (if in fact that be the case). If ACMF was possessed of an asset, being the loan, and if later Claremont became its sole shareholder, then Claremont had the rights of a sole shareholder in relation to that asset.
Case: Denis &amp; Ors v McMahon (1989) 7 ACLC 283
Outcome: cited
The authorities suggest, as the applicant contended, that merely because a person is a shareholder or a director that is not enough to establish that a person is a person aggrieved. In this case, the first plaintiff is merely a director. However, upon his own evidence, the first plaintiff is the person who, by his own inaction, caused deregistration of ACMF. There is presently no suggestion that the first plaintiff might be prosecuted for a contravention of s 188 of the Corporations Act . As the secretary of ACMF, it was his responsibility to attend to the various matters in s 188(1) of the Corporations Act . Although there is presently no suggestion that any proceedings might be brought against the first plaintiff in relation to whatever breach of duty he committed, that is a risk, it seems to me, which would entitle the first plaintiff to say that he is a person aggrieved. The first plaintiff's conduct might have put some sort of legal burden on him that would be partly relieved by ACMF's reregistration: Ealing Corporation [1959] 1 QB at 391. In those circumstances, notwithstanding that the first plaintiff is a director and secretary only, in my opinion, he is a person aggrieved because he has a real and direct interest in the reregistration of ACMF: Denis &amp; Ors v McMahon (1989) 7 ACLC 283.
Case: Australian Competition and Consumer Commission v Australian Securities and Investment Commission (2000) 174 ALR 688
Outcome: cited
ACMF came to be deregistered because of the default of its director in failing to pay an ASIC fee. It has by its director undertaken to remedy that default. ASIC does not object to the reinstatement of the reregistration of ACMF. ASIC's attitude should be taken into account. It should be clearly understood that a company which has been deregistered for failing to comply with its statutory obligations could not be expected to be reregistered as of right. More is required. The Court must be satisfied that it would be just to order the reinstatement of the registration. The words of the section give the Court a very wide discretion. In exercising that discretion, which must remain unfettered, the Court will ordinarily have regard to the circumstances in which the company's registration lapsed; the party seeking the order; the reasons for seeking the order; the utility of making any order; the prejudice which any party including the company which is sought to be the subject of the order for reinstatement of the registration might suffer; and any other circumstances which would bear upon the making of an order which in all the circumstances would be just: see Australian Competition and Consumer Commission v Australian Securities and Investment Commission (2000) 174 ALR 688. In making the order it must also be steadily borne in mind that the company's registration is not to be reinstated for a particular purpose but the company's registration will be reinstated for all purposes: Donmastry Pty Ltd v Albarran (2004) 49 ACSR 745 at 747.
Case: Donmastry Pty Ltd v Albarran (2004) 49 ACSR 745
Outcome: cited
ACMF came to be deregistered because of the default of its director in failing to pay an ASIC fee. It has by its director undertaken to remedy that default. ASIC does not object to the reinstatement of the reregistration of ACMF. ASIC's attitude should be taken into account. It should be clearly understood that a company which has been deregistered for failing to comply with its statutory obligations could not be expected to be reregistered as of right. More is required. The Court must be satisfied that it would be just to order the reinstatement of the registration. The words of the section give the Court a very wide discretion. In exercising that discretion, which must remain unfettered, the Court will ordinarily have regard to the circumstances in which the company's registration lapsed; the party seeking the order; the reasons for seeking the order; the utility of making any order; the prejudice which any party including the company which is sought to be the subject of the order for reinstatement of the registration might suffer; and any other circumstances which would bear upon the making of an order which in all the circumstances would be just: see Australian Competition and Consumer Commission v Australian Securities and Investment Commission (2000) 174 ALR 688. In making the order it must also be steadily borne in mind that the company's registration is not to be reinstated for a particular purpose but the company's registration will be reinstated for all purposes: Donmastry Pty Ltd v Albarran (2004) 49 ACSR 745 at 747.
Case: Knight v FP Special Assets Ltd [1992] HCA 28 ; (1992) 174 CLR 178
Outcome: referred to
It was put that Claremont may elect to fund ACMF in the District Court action without itself incurring any liability for the applicant's costs in the event that the applicant were successful in defending the proceedings. It was submitted that the reasoning in Knight v FP Special Assets Ltd [1992] HCA 28 ; (1992) 174 CLR 178 may not be apposite having regard to the statutory powers of the District Court to award costs against a non-party. I think that argument must be rejected. In Vestris v Cashman (1999) 72 SASR 449, the Full Court of the Supreme Court considered the District Court's power to award costs against non-parties. Following upon that decision, s 42 of the District Court Act 1991 (SA) was amended to make it clear that costs could be awarded by the Court against any party, whether a party to or a witness in the proceedings or not: s 42 of the District Court Act 1991 (SA).
Case: Vestris v Cashman (1999) 72 SASR 449
Outcome: cited
It was put that Claremont may elect to fund ACMF in the District Court action without itself incurring any liability for the applicant's costs in the event that the applicant were successful in defending the proceedings. It was submitted that the reasoning in Knight v FP Special Assets Ltd [1992] HCA 28 ; (1992) 174 CLR 178 may not be apposite having regard to the statutory powers of the District Court to award costs against a non-party. I think that argument must be rejected. In Vestris v Cashman (1999) 72 SASR 449, the Full Court of the Supreme Court considered the District Court's power to award costs against non-parties. Following upon that decision, s 42 of the District Court Act 1991 (SA) was amended to make it clear that costs could be awarded by the Court against any party, whether a party to or a witness in the proceedings or not: s 42 of the District Court Act 1991 (SA).
Case: WACO v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCAFC 171 ; (2003) 131 FCR 511
Outcome: referred to
Before the Federal Magistrate, the appellant argued that the RRT had failed to accord procedural fairness because it failed properly to inform him of the issues it had with the authenticity of the letters and documents he provided relating to his membership in the ANPP. The appellant cited WACO v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCAFC 171 ; (2003) 131 FCR 511 in support of this submission. 8 The Federal Magistrate rejected the appellant's argument. It is not necessary to review his Honour's reasons as the appellant has abandoned this ground of appeal. 9 On 30 May 2006, the day before the hearing of the appeal, the appellant filed an amended notice of appeal. The appellant abandoned the ground raised before the Federal Magistrates Court and sought to substitute the following ground of appeal: "The Tribunal failed to comply with s 424A of the Act by failing to give particulars of information which was part of the reason for affirming the decision under review being the: i) information in his initial application for a protection visa that he was an Ijaw and feared persecution because he was an Ijaw and that he had said this and no more in failing to mention that he was a member of the Ijaw Youth Council or that he was Secretary of that organisation j) information in his initial application for a protection visa that the incident that appeared to motivate him to leave Nigeria was the assassination of Harry Marshall but it was clear from documents in the applicant's offshore visa application that he had planned to leave Nigeria and made inquiries about coming to Australia in 2002" At the hearing of the appeal, the appellant abandoned the second proposed ground entirely and sought only to advance a more limited form of the first ground.
Case: SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2
Outcome: referred to
The appellant filed written submission on 30 May 2006. In these submissions, the appellant argued that leave should be granted to allow him to present fresh grounds of appeal. The appellant claimed that granting leave would be expedient and in the interests of justice. In support of this claim, the appellant argued that the recent decision in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 (" SZEEU ") made new grounds available since the hearing in the Federal Magistrates Court. 11 Further, the appellant submitted that its new ground had a strong prospect of success and that the prejudice to the appellant of being deprived of this ground was significant. In contrast, according to the appellant, the first respondent would not suffer any prejudice that could not be cured by an appropriate costs order. 12 At the hearing on 31 May 2006, the appellant further modified his proposed grounds of appeal. As I have said, he abandoned the proposed second ground. That is, the appellant no longer relied on any failure to provide information relating to the appellant's motive for leaving Nigeria. 14 The appellant submitted that the RRT made a specific adverse credibility finding based on his failure, in his initial application, to mention his membership of the Ijaw Youth Council. The appellant conceded that, within the context of the RRT's reasons, this information was not a major reason for the decision. According to the appellant, however, under SZEEU , the Court should not consider the relative importance of the information. Rather, the question is simply whether the information was any part of the reason. Therefore, in the appellant's submission, the Court should find that the RRT breached its s 424A obligations. 15 The first respondent submitted that the RRT had fulfilled its obligations under s 424A. The first respondent argued that, in rejecting the appellant's claims concerning the Ijaw Youth Council, the RRT relied on the fact that the appellant had not mentioned that he was the Secretary of the Council. In the first respondent's submission, it was the appellant's failure to mention such a significant fact that led the RRT to reject his claims about the Ijaw Youth Council as a recent invention. The first respondent contended that, although the RRT found that the appellant was not a member of the Ijaw Youth Council, it did not specifically rely on the fact that the appellant had not mentioned this membership in his protection visa application. 16 The first respondent also noted that the s 424A letter informed the appellant that his failure to mention that he was the Secretary of the Ijaw Youth Council might lead to an inference that his claims to have "been involved with the Ijaw Youth Council were recent inventions." The first respondent posited that, by stating that it might conclude that his 'involvement' in the Council is a recent invention, the RRT informed the appellant of the significance of his initial failure to mention his membership in the organisation.
Case: VAAC v Minster for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74 ; (2003) 129 FCR 168
Outcome: referred to
As counsel for the appellant acknowledged, the proposed ground of appeal raised a basis for a claim of jurisdictional error on the RRT's part that had not been argued before the Federal Magistrate. The court may allow such a ground to be argued on an appeal if it is satisfied that it is expedient in the interests of justice to allow the new ground to be argued and determined: see VAAC v Minster for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74 ; (2003) 129 FCR 168 (" VAAC ") at 177 [26] per North, Merkel and Weinberg JJ. Whether or not leave ought be granted depends on such matters as the prospects of success of the proposed new ground, the prejudice to the first respondent in allowing the ground to be raised, the possible serious consequences to the applicant if the leave sought is refused, and the integrity of the appellate process: see VAAC at 177 [26]. For the reasons given below, I find that the proposed new ground has no prospect of success. I would therefore refuse leave to amend on the basis that such leave would be futile. 18 Section 424A of the Act requires the RRT to give the applicant, in the way the RRT considers appropriate, particulars of any information that the RRT considers would be the reason, or part of the reason, for affirming the decision under review, to ensure, as far as reasonably practicable, that the applicant understands why it is relevant, and to invite the applicant to comment on it: s 424A(1). The information and invitation must be given by a prescribed method: s 424A(2). Section 424A does not apply to certain kinds of information, being information that is not specifically about an applicant and is just about a class of persons, or information that the applicant gave for the purpose of the application, or non-disclosable information: s 424A(3). 19 For the purposes of this appeal, the key passage of the RRT's reasons is the passage set out at [6] above. In that passage, the RRT gives its reasons for rejecting the appellant's claim to have been involved with the Ijaw Youth Council. This passage should be read in the context of the warning sent to the appellant pursuant to s 424A. In that letter, the RRT informed the appellant that, as he had not mentioned having been Secretary of the Council, the RRT might conclude that his involvement with the Council was a recent invention. Also, I note that the RRT said that it could not accept that the appellant would not have mentioned his membership if it "was of such significance". I accept the first respondent's submission that it was the appellant's failure to mention that he was the Secretary of the Ijaw Youth Council that was the basis of the RRT's finding that he was not involved in the Council. That is, this was, relevantly, a part of the reason for the decision the Tribunal made. Therefore, there was no beach of s 424A.
Case: Whittaker v Child Support Registrar [2003] FCAFC 114
Outcome: followed
9B is a re-hash of an old, defeated argument. In my view, the reasoning of the High Court in Luton [2002] HCA 13 ; 210 CLR 333 provides a complete answer to Mr Davis' claim. Furthermore, in Whittaker v Child Support Registrar [2003] FCAFC 114 at [4] , a Full Court of this Court held that the decision in Luton [2002] HCA 13 ; 210 CLR 333 foreclosed any constitutional challenge. I agree.
Case: SZBYR v Minister for Immigration &amp; Citizenship (2007) 185 ALR 609
Outcome: cited
I have already noted that the Tribunal sent to the appellant the s 424A letter. This was done before the decision of the High Court in SZBYR v Minister for Immigration &amp; Citizenship (2007) 185 ALR 609. In any event, it cannot be said that there was any failure to comply with any obligation that may have existed on the part of the Tribunal. The Tribunal set out all of the particulars of the matters of concern, explained to the appellant why those matters were of concern and gave the appellant the opportunity to respond. The introduction included the independent country information that the Tribunal had consulted concerning the Construction Corporation and its activities and a major earthquake that took place in the north of Jiangxi Province at a relevant time. That information comes within s 424A(3)(a) of the Act. In any event, the Tribunal put all of the material to the appellant and I can see no breach of s 424A(1). 25 During the hearing the appellant raised an allegation that the Tribunal failed to give him the opportunity to present all of his material. Specifically, he says that he was not given enough time to present his case to the Tribunal member. There is no evidence to support that allegation and I note that it was not made to Scarlett FM. As I have said, the Tribunal gave a very detailed discussion of all of the matters put to it, not only from the written material provided by the appellant but also from the oral evidence. The Tribunal's account of the hearing describes a detailed number of questions put to the appellant and responses from him. This indicates that the Tribunal member took the time to question the appellant during the course of the hearing. In addition, the hearing notes of the Tribunal, which are in evidence, indicate that the hearing took place over two and a half hours. I am not satisfied that the Tribunal improperly shortened the hearing or failed to give the appellant the opportunity to present his case. 26 I am not satisfied that any of the grounds of appeal, either as raised in the written notice of appeal or as raised at the hearing of this appeal, have been made out. I do not see that there has been any jurisdictional error on the part of the Tribunal or any error on the part of the Federal Magistrate. It follows that the appeal should be dismissed.
Case: NACB v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCAFC 235
Outcome: cited
To the extent that this particular may also assert illogicality or irrationality on the part of the Tribunal, such a ground is not made out. In any event, mere illogical reasoning does not of itself constitute jurisdictional error ( NACB v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCAFC 235 at [30] ; VWST v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 286 at [18] ).
Case: VWST v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 286
Outcome: cited
To the extent that this particular may also assert illogicality or irrationality on the part of the Tribunal, such a ground is not made out. In any event, mere illogical reasoning does not of itself constitute jurisdictional error ( NACB v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCAFC 235 at [30] ; VWST v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 286 at [18] ).
Case: Australian Broadcasting Corporation v O'Neill [2006] HCA 46 ; (2006) 227 CLR 57
Outcome: cited
Counsel for Mr Asaad seeks a declaration that the above provision does not authorise Mr Asaad's removal from Australia in circumstances where the removal would pose a serious threat to his safety or that of other persons. Counsel says that because a substantial question of statutory construction is involved, there is a prima facie case to be tried and the status quo should not be disturbed: see Australian Broadcasting Corporation v O'Neill [2006] HCA 46 ; (2006) 227 CLR 57 at 82. This, it is said, and the balance of convenience in this case, together weigh in favour of Mr Asaad and warranted the making of the interlocutory orders he seeks. 4 Mr Asaad has filed an affidavit affirmed by Ms Paula Farrugia, a psychologist, who has known Mr Asaad for about four months while visiting the Villawood Detention Centre in which he is detained. Ms Farrugia has been informed by Mr Asaad that he suffers from acute epilepsy and has been informed by other detainees that they have observed him suffering from seizures. Ms Farrugia understands that Mr Asaad has epileptic seizures on an almost daily basis and that he has regularly had two to three epileptic seizures per day. She herself has observed his condition after a seizure, which lead to large bruises on his face and arms. 5 In January 2008, Ms Farrugia discussed Mr Asaad's condition with him and he indicated that he had previously been hospitalised at Canterbury-Bankstown Hospital, Liverpool Hospital and at a psychiatric unit at Bankstown Hospital. Ms Farrugia states that Mr Asaad had been on a hunger strike for 14 days in January 2008, and during March and April he had been on a further hunger strike for 35 days as part of an effort to have his request for relocation granted.
Case: Beyazkilinc v Manager Baxter Immigration Reception &amp; Processing Centre [2006] FCA 16
Outcome: considered
It is worth noting that in Beyazkilinc v Manager Baxter Immigration Reception &amp; Processing Centre [2006] FCA 16 , Mr Beyazkilinc sought interlocutory relief against his removal from Australia and Mansfield J made an order that the Commonwealth of Australia be restrained from removing him until further order. His Honour's judgment in that case was not appealed.