mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Re McBain; Ex parte Australian Catholic Bishops Conference [2002] HCA 16 ; (2002) 209 CLR 372
Outcome: cited
jurisdiction which the Court exercises when it entertains an application under s 1323 is a jurisdiction defined in part by the remedies available under that section. In this respect there is some analogy between that jurisdiction and the jurisdiction conferred on the Court by s 39B(1) of the Judiciary Act 1903 (Cth) and on the High Court by s 75(v) of the Constitution . The question about the availability of relief under s 23 is analogous to the much debated question whether the High Court, in an application for mandamus or prohibition or an injunction under s 75(v) of the Constitution , has power to award certiorari in addition to, or in lieu of, those remedies. In the case of the Federal Court the source of that power in aid of jurisdiction under s 39B(1) would be s 23. The weight of authority, which need not be discussed in detail here, is that certiorari may be granted when it is in aid of the primary relief sought and, more controversially, as an alternative when a party has shown it is entitled to the primary relief but certiorari is the more practical remedy in the circumstances: Pitfield v Franki [1970] HCA 37 ; (1970) 123 CLR 448 ; R v Marshall; Ex parte Federated Clerks Union of Australia [1975] HCA 37 ; (1975) 132 CLR 595 at 609; R v Cook; Ex parte Twigg [1980] HCA 36 ; (1980) 147 CLR 15 at 26, 32 and 34; Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd [1981] HCA 7 ; (1981) 148 CLR 457 at 477; Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 ; (2000) 204 CLR 82 at 90; Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 and Re McBain; Ex parte Australian Catholic Bishops Conference [2002] HCA 16 ; (2002) 209 CLR 372 at [19] and [54]. The general proposition informing the question considered in these authorities is that the conferral of power to grant a remedy in relation to matters in which the Court has jurisdiction does not constitute an expansion of the jurisdiction.
Case: Byrne v Australian Airlines Ltd [1995] HCA 24 ; (1995) 185 CLR 410
Outcome: cited
Cardile v LED Builders Pty Ltd [1999] HCA 18 ; (1999) 198 CLR 380 the question arose whether s 23 would authorise a mareva type order against persons not party to the proceedings in which it was sought. The High Court held, inter alia, that such an order was appropriate where the third party might be subject to some court process whereby, whether following the appointment of a liquidator or otherwise, the third party may be obliged to disgorge property. In their discussion of s 23 , Gaudron, McHugh, Gummow and Callinan JJ made the point that the section does not authorise the court to grant injunctive relief where jurisdiction is acquired under another statute which provides an exhaustive code of available remedies and that code does not authorise the grant of an injunction (at [33]). They referred in this connection to Byrne v Australian Airlines Ltd [1995] HCA 24 ; (1995) 185 CLR 410 at 425-426 and Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30 ; (1998) 195 CLR 1 at 29.
Case: Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30 ; (1998) 195 CLR 1
Outcome: cited
Cardile v LED Builders Pty Ltd [1999] HCA 18 ; (1999) 198 CLR 380 the question arose whether s 23 would authorise a mareva type order against persons not party to the proceedings in which it was sought. The High Court held, inter alia, that such an order was appropriate where the third party might be subject to some court process whereby, whether following the appointment of a liquidator or otherwise, the third party may be obliged to disgorge property. In their discussion of s 23 , Gaudron, McHugh, Gummow and Callinan JJ made the point that the section does not authorise the court to grant injunctive relief where jurisdiction is acquired under another statute which provides an exhaustive code of available remedies and that code does not authorise the grant of an injunction (at [33]). They referred in this connection to Byrne v Australian Airlines Ltd [1995] HCA 24 ; (1995) 185 CLR 410 at 425-426 and Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30 ; (1998) 195 CLR 1 at 29.
Case: Beach Petroleum v Johnson (1992) 9 ACSR 404
Outcome: cited
appointment of receivers under s 1323(1)(h) is, as von Doussa J said in Beach Petroleum v Johnson (1992) 9 ACSR 404 at 406 "a drastic step not lightly to be taken". In my opinion ASIC has not made out a case that it is either necessary or desirable that receivers be appointed to the property of Rold. The party for whom protection is sought is the liquidator. The liquidator can bring his claim and apply for any necessary interlocutory relief if he considers that the asset which he claims is at risk. He can do so with an appropriate undertaking as to damages which is not offered by ASIC. For final relief under s 1323 no such undertaking is required even though it maybe time limited. In respect of interim relief under s 1323(3), no such undertaking is required see s 1323(4). The primary "risk" which may confront the liquidator appears to be that of payment of a substantial amount of the relevant fund to the Commissioner of Taxation in satisfaction of a liability for capital gains tax. The requirement to make such a payment is not likely to arise for another three months. The history of the relationship between Allan Carey and his brother and their prior dealings gives rise, at worst, to a very small and, in my opinion, much diminished risk, that Norman Carey might influence Allan Carey to deal with Rold assets for his benefit or that of entities associated with him. I do not consider that risk of such a magnitude as to warrant the appointment of receivers under s 1323, nor the making of orders under s 23 of the Federal Court Act . For the preceding reasons the application will be dismissed. I should add that, in my opinion, it is desirable that consideration be given to an amendment to s 1323 to include a power in the Court to make orders restricting or prohibiting dealings with the property of the "relevant person". This would allow more flexibility in the making of such orders than is possible by invoking s 23 in aid of the jurisdiction defined by s 1323. I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French. Associate: Dated: 8 March 2007 Counsel for the Plaintiff Mr S Owen-Conway QC and Mr N Gvozdin Solicitor for the Plaintiff: Australian Government Solicitor Counsel for the Eleventh Defendant: Mr PP McQuade Solicitor for the Eleventh Defendant: McCullough Robertson Date of Hearing: Dates of Further Written Submissions: 26 February 2007 5 and 6 March 2007 Date of Judgment: 8 March 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/310.html
Case: Bell Wholesale Co. Ltd v Gates Export Corporation [1984] FCA 34 ; (1984) 2 FCR 1
Outcome: cited
28 r 3 provides that when considering an application by a respondent for an order for security under s 56 , the Court may take into account the matters listed in that rule, including the fact "that an applicant is ordinarily resident outside Australia". Clearly, this does not limit the matters that the Court may take into account when exercising its jurisdiction under s 56: see to this effect Bell Wholesale Co. Ltd v Gates Export Corporation [1984] FCA 34 ; (1984) 2 FCR 1 at 2-3. Lodestar does not rely on s 1335 of the Corporations Act 2001 (Cth). Section 1335(1) provides that where a corporation is plaintiff in any action or other legal proceeding, the court having jurisdiction in the matter may, "if it appears by credible testimony that there is reason to believe that the corporation will be unable to pay the costs of the defendant if successful in his, her or its defence", require sufficient security to be given for those costs and stay all proceedings until the security is given. There is no express condition of this kind in s 56 of the FCA Act. While the prospect of an applicant's inability to satisfy an adverse costs order is obviously a relevant consideration, it is not a condition of the availability of the power conferred by s 56. Indeed, the present case is one in which I am satisfied that the applicants would be able to satisfy an adverse costs order, yet will order them to provide security.
Case: Jesse James v Nolmont Pty Ltd (subject to a Deed of Company Arrangement) (ACN 010 874 834) [2007] FCA 1604
Outcome: cited
relation to the distribution agreement, Lodestar relies on Jesse James v Nolmont Pty Ltd (subject to a Deed of Company Arrangement) (ACN 010 874 834) [2007] FCA 1604. In that case the applicants were all resident outside Australia and the "asset within the jurisdiction" on which they relied was a stream of royalties or a potential stream of royalties payable under a trade mark licence by a licensee or licensees in Australia in respect of the trade marks. Ryan J considered that the respondent should not have to rely on "assets as speculative as an unquantified stream of royalties flowing on some completely unidentified terms to Vanilla Gorilla [one of the applicants] or either of the other applicants". The case is not on all fours with the present one but his Honour's decision points in the direction of not regarding the present distribution agreement as an adequate "asset within the jurisdiction" for present purposes. While it may be that the distribution agreement would provide a satisfactory source of money against which an adverse costs order against Rare Breed could be enforced, this is doubtful for the reasons mentioned above. (iii) Commitment to Australia There is evidence that the Australian market is second in size only to that of the USA. Those two countries account for about 85% of the sales of the WILD TURKEY business the subject of the Campari Group's acquisition from the Pernod Ricard Group. There is also evidence that the Campari Group intends to expand its presence in important international markets such as Australia. The Information Memorandum contains the following (at p 8): Wild Turkey is a global brand, with a total sales volume of more than 800,000 nine-litre cases sold in over 60 markets. The US is the largest market, and generates approximately 50% of sales, while Australia and Japan are the second and third most important markets respectively. In Australia, the bulk of the business is represented by sales of the ready-to-drink products Wild Turkey &amp; Cola and Wild Turkey &amp; Dry, which have an alcoholic content of 6% vol. sold in single serve bottles and cans. ....................................................................................................... The Issuer intends to meet the following objectives through the acquisition: ... - to expand its presence on important international markets, such as Australia, where the acquisition lays the foundations for the creation of a distribution platform, and Japan. Annual sales in Australia are of approximately 120,000 cases of straight bourbon annually and approximately 1.2 million cases of "ready-to-drink" products. I also refer to confidential volume figures at [35] above.
Case: NAKX v Minister of Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCA 1559
Outcome: applied
The question arises then how to dispose of the matter. Section 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth) empowers the Court to make an order that an appeal to the Court be dismissed for failure of the appellant to attend a hearing relating to the appeal. In circumstances where no proper justification has been given for the failure to attend, in my view, it is appropriate to exercise the discretion given to make such an order. In reaching this conclusion, I have considered the principles in other cases dealing with similar matters, in particular the decisions of NAKX v Minister of Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCA 1559 , and NALM v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 17 , which support the exercise of the power in these circumstances.
Case: NALM v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 17
Outcome: applied
The question arises then how to dispose of the matter. Section 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth) empowers the Court to make an order that an appeal to the Court be dismissed for failure of the appellant to attend a hearing relating to the appeal. In circumstances where no proper justification has been given for the failure to attend, in my view, it is appropriate to exercise the discretion given to make such an order. In reaching this conclusion, I have considered the principles in other cases dealing with similar matters, in particular the decisions of NAKX v Minister of Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCA 1559 , and NALM v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 17 , which support the exercise of the power in these circumstances.
Case: Australian Securities &amp; Investments Commission v Yandal Gold Pty Ltd (1999) 32 ASCR 317
Outcome: discussed
In Australian Securities &amp; Investments Commission v Yandal Gold Pty Ltd (1999) 32 ASCR 317, Merkel J considered a contravention of s 615 of the then-applicable Corporations Law . Section 737 empowered the Court to "make such order or orders as it thinks just" and s 739(1) empowered a court to make "such orders as it thinks necessary or desirable to protect the interests of a person affected by the takeover scheme". His Honour held at 354-355: However, there might be a more appropriate and just remedy. It relates to Edensor's carried interest. Mr Lonergan's evidence, which valued that interest at $27-30 million, was only partly challenged by the respondents. As explained earlier, that is effectively the "price" paid by the Normandy group to Edensor to secure the bid structure agreement and the Shareholders Agreement or, put another way, a measure of the benefit obtained by Edensor by its contraventions of s 615. As a consequence of the payment of that "price" the shareholders were deprived of the opportunity of receiving an offer of a significantly higher price at the time of the bid and were left with little practical choice but to accept the offer made or to now exercise their right to require the acquisition by Yandal Gold of their shares pursuant to s 703(2). Is it just that that "price" be redirected to those who suffered the detriment arising from its payment? In my view an order that Edensor be required to disgorge to those shareholders the value of the benefit it received for its contravening conduct is "just" under s 737 and is protective of the interests of the shareholders under s 739. 66 It follows from the above that I am satisfied that the Panel made no error in making the orders. 67 For all of the above reasons the application must be dismissed. In the ordinary course, the respondents, having been successful, would be entitled to their costs. However, neither party made any submissions as to costs either orally or in writing. That being so I shall allow all parties time to make submissions as to costs before making any orders. I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone. Associate: Dated: 23 October 2008 Counsel for the Applicant: I M Jackman SC, J R J Lockhart Solicitor for the Applicant: Allens Arthur Robinson Counsel for the First Respondent: J G Santamaria QC Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: S Gageler SC, I R Pike Solicitor for the Second Respondent: Australian Securities &amp; Investments Commission Date of Hearing: 19, 20 May 2008 Date of Judgment: 23 October 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1572.html
Case: Glencore International AG v Takeovers Panel [2006] FCA 274 ; (2006) 151 FCR 77
Outcome: discussed
The regulatory framework which Chapter 6 establishes is, as Gleeson CJ observed in Attorney General (Cth) v Alinta Ltd at 4, designed "to preserve an efficient, competitive and informed capital market". Section 657A(1) recognises that the conduct of a takeover may be inconsistent with such a market even where it does not contravene a specific provision of the Corporations Act . Emmett J recognised this in Glencore International AG v Takeovers Panel [2006] FCA 274 ; (2006) 151 FCR 77 at 108: The panel, of course, is expressly empowered by s 657A(1) to make declarations notwithstanding that there has been no contravention of the Act. Part 6.10 of the Act provides flexibility in the regulation of the acquisition of shares in circumstances where the literal operation of the regulatory regime is either unnecessarily restrictive or ineffective to achieve the object of Ch 6. It is clear enough that the regime involving the panel is designed to ensure regulation of the acquisition of shares over and above the provisions contained in the balance of Ch 6: ... The panel made its declaration because, notwithstanding compliance by Glencore and the Banks with the disclosure regime prescribed by the Act, the purposes of Ch 6, as expressed in s 602 , were not achieved. That is precisely the circumstance for which s 657A provides. It is not unreasonable for the panel, if its decision was otherwise lawful and authorised, to reach that conclusion.
Case: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24
Outcome: cited
The ADJR Act provides that an improper exercise of power includes, inter alia, taking an irrelevant consideration into account in the exercise of the power and failing to take a relevant consideration into account: s 5(2). CEMEX submitted that in declining to have regard to whether its conduct gave rise to a contravention of Chapters 6, 6A, 6B, or 6C of the Corporations Act or was otherwise contrary to law, the Panel ignored a consideration that it was bound to take into account in making the decision: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24 at 39-40. It is not in dispute that the Panel expressly declined to consider this question. Therefore the only issue for me to decide on this point is whether the Panel was required to have regard to it. 36 Section 657A(3)(a)(ii) imposes an obligation on the Panel, when contemplating a declaration of unacceptable circumstances, to have regard to "the other provisions of this Chapter [6]". CEMEX submitted that, because of the express reference in s 657A(2)(c) to Chapters 6A, 6B and 6C, the obligation extends also to those chapters. It accepted that a declaration of unacceptable circumstances may be made even if the circumstances do not give rise to a contravention of the Act; s 657A(1). It submitted, however, that a consideration need not be determinative to render it relevant. CEMEX referred to the Panel's observation that forming a view about whether a contravention had occurred would only be one aspect of considering whether the circumstances were unacceptable. It argued that it did not follow that the issue could be ignored. 37 CEMEX's submissions advocate a mechanistic approach to the interpretation of s 657A(3)(a). This is not what the section requires. An obligation to have regard to Chapter 6 does not require the decision maker to consider whether there has been a contravention of each and every applicable provision. The task of the Panel was to consider whether, as ASIC alleged, unacceptable circumstances had arisen. Section 657A(3)(a) sets out the matters that it is mandatory for the Panel to consider. The question of whether there has been a contravention of Chapters 6, 6A, 6B, 6C is not included as a mandatory matter. The fact that s 657A(1) specifically provides that it is not necessary for there to be a contravention of a provision of the Act, indicates that if the Panel considered CEMEX's conduct resulted in unacceptable circumstances irrespective of there being a contravention, it was not necessary for it to consider if there had been a contravention. It is clear that the fact of a contravention would be highly relevant to the question of whether the circumstances should be characterised as "unacceptable". If, however, such circumstances exist irrespective of a contravention, it is not necessary for the Panel to consider that issue.
Case: Queen v Australian Broadcasting Tribunal; ex parte Hardiman [1980] HCA 13 ; (1980) 144 CLR 13
Outcome: cited
Before discussing the Panel's decision, a brief overview of its composition and function is appropriate. The following outline, draws heavily on the submissions made by the Panel, which, consistent with the principle in Queen v Australian Broadcasting Tribunal; ex parte Hardiman [1980] HCA 13 ; (1980) 144 CLR 13 at 35-36, made submissions limited to the Panel's powers and procedures and not in the role of a protagonist. 8 The written submissions of the Panel outlined its history, commencing with its establishment under Part 10 of the Australian Securities Commission Act 1989 (Cth). When that Act was repealed and replaced by the Australian Securities and Investments Commission Act 2001 (Cth) ( ASIC Act ), the Panel continued in existence by operation of s 261 of that Act. Initially, the Panel was known as the Corporations and Securities Panel. Its name was changed to the "Takeovers Panel" by the Financial Services Reform Act 2001 (Cth). Interesting as the history is, it is not necessary to refer to it in any detail and I shall confine my comments to the present constitution and operation of the Panel. 9 The members of the Panel are appointed by the Governor-General on the nomination of the Minister and may be full-time or part-time members. They must be persons with knowledge or experience in one or more of the fields of business, administration of companies, financial markets, financial products and financial services, law, economics, and accounting; ASIC Act s 172(4). The Panel is not a legal entity, but is merely a collective term for the individual members.
Case: Maxwell v Murphy (1957) 96 CLR 261
Outcome: cited
It is common ground that in order to succeed on his claim under the Act, Mr Boyn must be able to establish that Schering unlawfully discriminated against him on the ground of his age in one of the respects identified in paras (a), (b), and (d) of s 18(2) of the Act (see [12] above it is common ground that para (c) is irrelevant) after the Act commenced operation on 23 June 2004: for example, see Maxwell v Murphy (1957) 96 CLR 261 at 267. However, the statement of claim does not allege facts falling within s 14 and s 18(2) of the Act occurring after that date. There is no pleading of the conduct of Schering after 23 June 2004 that amounted to Schering having treated Mr Boyn less favourably than, in circumstances that were the same or not materially different, Schering had, after 23 June 2004, treated or proposed to treat persons of a different age after 23 June 2004 (see s 14 of the Act).