mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: King v Yurisch [2006] FCA 1368 ; (2006) 59 ACSR 598 
Outcome: cited
471B of the Corporations Act itself is silent as to the principles pursuant to which leave to proceed will be granted: King v Yurisich [2006] FCA 1369 at [13] . The court's discretion is broad but not absolute, and must be exercised fairly. It can only be exercised if a serious question is shown: King v Yurisch [2006] FCA 1368 ; (2006) 59 ACSR 598 at [9] [15]; Vagrand Pty Ltd (in liq) v Fielding (1993) 41 FCR 550 at 556. The test which is akin to that of whether there is a "serious question to be tried" as applied in interlocutory injunctions: Vagrand at 556. The authorities have not established an exhaustive list of the circumstances in which it may be appropriate for the Court to grant leave to proceed: Re Gordon Grant and Grant Pty Ltd [1983] 2 Qd R 314 at 317G per McPherson J (with whom the Court agreed).
Case: Meehan v Stockmans Australian Caf&eacute; (Holdings) Pty Ltd (1996) 22 ACSR 123
Outcome: cited
for unliquidated damages in contract, and for misleading or deceptive conduct, are admissible to proof in a liquidation: Re Gordon Grant and Grant Pty Ltd at 317; Meehan v Stockmans Australian Caf&eacute; (Holdings) Pty Ltd (1996) 22 ACSR 123 at 128.
Case: Rodgers v Schmierer; in the matter of Reader [2002] FCA 717
Outcome: cited
have dismissed applications for leave to proceed against a company in liquidation under s 471B in circumstances including: (a) where leave is sought in third party proceedings which would slow the liquidation to the pace of an action under the control of others, and where the issues in the third party proceedings are distinct from those in the primary proceedings: Re Gordon Grant and Grant Pty Ltd , 319 320. (b) where the claimant fails to adduce evidence demonstrating any seriousness or complexity to the claim, or the existence of a serious dispute: Nu Life Air Conditioning Pty Ltd v Reef Building Contractors Pty Ltd [2006] NSWSC 1245 at [7] ; (c) where the claimant asserts liability and sought a declaration of entitlement to be paid, of a type provable in liquidation: HP Mercantile v Australian Rural Group [2005] NSWSC 895 at [31] [32]; (d) where the claim is too onerous on a liquidator, even if it may not be capable of resolution by the lodging of a proof of debt: for instance, where the company in liquidation is an insurer, and 'the disruption to the work of the provisional liquidators and the expense which would be occasioned by dealing with [claims] on an ad hoc basis would unduly prejudice the creditors as a whole': Roots v Trussmaster Pty Ltd [2001] QSC 295 at [8] ; (e) where the proceeding would dissipate funds otherwise available to the creditors in circumstances where the liquidators agreed to admit a proof of debt in the entire amount of the claim: Rodgers v Schmierer, In the matter of Reader [2002] FCA 717 at [15] [16]. The liquidators have said the likelihood is that the Merrill Lynch breach of warranty claim would be admitted to proof as a contingent debt if submitted in the same or similar terms. The likelihood of a proof of debt being admitted is a powerful factor in favour of permitting the proof of debt process to be followed: Rodgers v Schmierer; in the matter of Reader [2002] FCA 717 at [15] - [16] . This would obviate any need for the liquidators to consider the misleading and deceptive conduct claim. These are, together, very significant considerations in the disposition of the motion. Stage to which the proceedings have progressed As I said previously I expect that the trial of the proceedings will likely take place in the first part of next year. There is no suggestion that these proceedings or the proposed cross-claim will delay the completion of the liquidation. Lift has already had a significant degree of involvement in the proceedings.
Case: Tyrrell v Tyrrells Building Consultancy Pty Ltd (2008) 66 ACSR 134
Outcome: cited
some cases, leave should be granted under s 471B because the litigation is a necessary prerequisite to the claimant being able to submit a proof of debt at all: for example, because the primary claim is one for apportionment. The proposed cross-claim is, I accept, not a claim of this type, but rather in effect, a claim for contribution. This is capable of being dealt with by proof of debt: Tyrrell v Tyrrells Building Consultancy Pty Ltd (2008) 66 ACSR 134 at 141. Merrill Lynch submits that it would be unreasonable that they, if unsuccessful in the proceedings commenced by the applicants, and the cross-claim was not determined in the proceedings, be later required to proceed with a separate action against the liquidators by way of a proof of debt. Amongst other things, they say that the risk of inconsistency between findings made by this Court in relation to the applicants' claims against Merrill Lynch and findings made by the liquidators in their adjudication of a proof of debt, gives rise to the potential for significant prejudice to Merrill Lynch if they are not granted leave to file the proposed cross-claim. I will now consider the first five factors set out under para [29] above. Amount and seriousness of the claim and complexity of the legal and factual issues
Case: Vagrand Pty Ltd (in liq) v Fielding (1993) 41 FCR 550
Outcome: cited
471B of the Corporations Act itself is silent as to the principles pursuant to which leave to proceed will be granted: King v Yurisich [2006] FCA 1369 at [13] . The court's discretion is broad but not absolute, and must be exercised fairly. It can only be exercised if a serious question is shown: King v Yurisch [2006] FCA 1368 ; (2006) 59 ACSR 598 at [9] [15]; Vagrand Pty Ltd (in liq) v Fielding (1993) 41 FCR 550 at 556. The test which is akin to that of whether there is a "serious question to be tried" as applied in interlocutory injunctions: Vagrand at 556. The authorities have not established an exhaustive list of the circumstances in which it may be appropriate for the Court to grant leave to proceed: Re Gordon Grant and Grant Pty Ltd [1983] 2 Qd R 314 at 317G per McPherson J (with whom the Court agreed). As was stated by McPherson J in Re Gordon Grant and Grant Pty Ltd (and as was approved by the Full Federal Court in Vagrand Pty Ltd (in liq) v Fielding (1993) 41 FCR 550 at 555): The question whether a claimant should be permitted to proceed by action, or should be required to submit his proof of debt and, if dissatisfied, appeal to a judge, is therefore reduced largely to one of choosing between alternative forms of procedure: at 317E.
Case: SZDBZ v Minister for Immigration &amp; Anor [2006] FMCA 890
Outcome: cited
In this appeal, the Appellant contends that Federal Magistrate Lloyd-Jones erred ( SZDBZ v Minister for Immigration &amp; Anor [2006] FMCA 890) in dismissing on 12 July 2006 an Application for Review of a decision of the Refugee Review Tribunal ('the Tribunal') dated 20 February 2004 and delivered on 11 March 2004 affirming a decision of the Minister's Delegate refusing the Appellant's application for a protection visa pursuant to the Migration Act 1958 (Cth) ('the Act'). 2 The Appellant's Notice of Appeal recites three grounds which fail to reveal the content or substance of the Appellant's contentions. Nevertheless, the grounds are these: '(a) The magistrate made [a] mistake in law in rejecting the Submissions made by my Lawyer. (b) The magistrate made [a] mistake in law in that the Tribunal had not decided my case correctly. (c) The magistrate made [a] Jurisdictional mistake in law in not holding that I was denied procedural fairness and denied natural Justice.' 3 Mr J M Patel of counsel prepared written submissions on behalf of the Appellant in support of the proceedings before Federal Magistrate Lloyd-Jones and the Appellant relied upon those written submissions in support of the grounds of appeal before this Court. In those submissions Mr Patel addresses three grounds of appeal. The first ground is that the Tribunal made a jurisdictional error in failing to properly construe and apply a correct understanding of the notion of 'persecution' and the elements of a 'well-founded fear' of persecution for the purposes of Article 1A(2) of the 1951 Convention relating to the Status of Refugees ('the Convention') as amended by the 1967 Protocol relating to the Status of Refugees ('the Refugees Protocol') for the purposes of s 65(1) of the Act.
Case: SJSB v Minister for Immigration &amp; Multicultural Affairs [2004] FCAFC 255
Outcome: cited
The statutory obligation of the Tribunal upon a reconsideration is to assess the scope and content of the Appellant's claims to determine, on all the material properly before the Tribunal, whether the Tribunal can be affirmatively satisfied that the Appellant holds a well-founded fear of persecution for a Convention reason. Notwithstanding that the Tribunal constituted by a Tribunal member other than Mrs Nicholls previously accepted aspects of the version of events asserted by the Appellant, Mrs Nicholls was obliged to discharge the statutory jurisdiction by examining the claims and reaching or failing to reach, the required degree of satisfaction. If not satisfied of the relevant matters, Mrs Nicholls was bound to 'refuse to grant the visa' (s 65(1)(b)) of the Act). In so approaching the matter, the Tribunal acted correctly and within jurisdiction and in a manner consistent with the observations of their Honours in SJSB v Minister for Immigration &amp; Multicultural Affairs [2004] FCAFC 255 at [15] , per Ryan, Jacobson and Lander JJ; Minister for Immigration &amp; Multicultural Affairs v VSAF of 2003 [2005] FCAFC 73 at [17] , per Black CJ, Sundberg and Bennett JJ and Minister for Immigration &amp; Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259.
Case: Minister for Immigration &amp; Multicultural Affairs v VSAF of 2003 [2005] FCAFC 73
Outcome: cited
The statutory obligation of the Tribunal upon a reconsideration is to assess the scope and content of the Appellant's claims to determine, on all the material properly before the Tribunal, whether the Tribunal can be affirmatively satisfied that the Appellant holds a well-founded fear of persecution for a Convention reason. Notwithstanding that the Tribunal constituted by a Tribunal member other than Mrs Nicholls previously accepted aspects of the version of events asserted by the Appellant, Mrs Nicholls was obliged to discharge the statutory jurisdiction by examining the claims and reaching or failing to reach, the required degree of satisfaction. If not satisfied of the relevant matters, Mrs Nicholls was bound to 'refuse to grant the visa' (s 65(1)(b)) of the Act). In so approaching the matter, the Tribunal acted correctly and within jurisdiction and in a manner consistent with the observations of their Honours in SJSB v Minister for Immigration &amp; Multicultural Affairs [2004] FCAFC 255 at [15] , per Ryan, Jacobson and Lander JJ; Minister for Immigration &amp; Multicultural Affairs v VSAF of 2003 [2005] FCAFC 73 at [17] , per Black CJ, Sundberg and Bennett JJ and Minister for Immigration &amp; Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259.
Case: Minister for Immigration &amp; Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259
Outcome: cited
The statutory obligation of the Tribunal upon a reconsideration is to assess the scope and content of the Appellant's claims to determine, on all the material properly before the Tribunal, whether the Tribunal can be affirmatively satisfied that the Appellant holds a well-founded fear of persecution for a Convention reason. Notwithstanding that the Tribunal constituted by a Tribunal member other than Mrs Nicholls previously accepted aspects of the version of events asserted by the Appellant, Mrs Nicholls was obliged to discharge the statutory jurisdiction by examining the claims and reaching or failing to reach, the required degree of satisfaction. If not satisfied of the relevant matters, Mrs Nicholls was bound to 'refuse to grant the visa' (s 65(1)(b)) of the Act). In so approaching the matter, the Tribunal acted correctly and within jurisdiction and in a manner consistent with the observations of their Honours in SJSB v Minister for Immigration &amp; Multicultural Affairs [2004] FCAFC 255 at [15] , per Ryan, Jacobson and Lander JJ; Minister for Immigration &amp; Multicultural Affairs v VSAF of 2003 [2005] FCAFC 73 at [17] , per Black CJ, Sundberg and Bennett JJ and Minister for Immigration &amp; Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259.
Case: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26
Outcome: referred to
The appellant contended that the Tribunal's conclusion concerning the credibility of the applicant in some way affected its reasoning in relation to the claim to fear persecution by reason of membership of a particular social group. However, there is no reason why the Tribunal cannot deal with those contentions in the alternative. That is to say, it would be open for the Tribunal to deal with the claim that the applicant was a member of a particular social group on the assumption that his evidence were to be accepted. It would not be illogical for the Tribunal, having reached an unfavourable conclusion on that question, to express unfavourable views on the credibility of the applicant (see SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [26] and [29]. That is in effect the approach adopted by the Tribunal. 36 That is to say, the Tribunal examined the applicant's claims on the basis that the assertions made by him were true. The Tribunal concluded that, even if all of the assertions made by the applicant were true, it was not persuaded that he had a well founded fear of persecution by reason of his membership of a particular social group. As formulated by counsel for the appellant, the alleged group consisted of working families with children who were non-combatants in the civil war between the Maoists and the Government. The Tribunal characterised the formulation of the alleged group consisting of people caught between the Maoists and the Government as being too amorphous to be considered further. The Tribunal made no error in concluding that the general population, who feared harm as a result of the struggle between the Maoists and the authorities, could not properly be characterised as a particular social group that was singled out for persecution. 37 Even on the applicant's evidence, there was no suggestion that non-combatants in the civil war are persecuted by reason of the fact that they are non-combatants in the civil war, whether or not they are members of families. It is, of course, appalling that innocent people might be severely harmed in circumstances where they do not wish to have any part to play in the fight between Maoists and government authorities. Nevertheless, there was no suggestion by the applicant that he was targeted simply by reason of his being a non-combatant in that conflict. Even if he and the appellant were innocent victims of the conflict, that would not be sufficient to attract the Refugees Convention. There would be no fear of harm for a Convention reason. Even if the applicant's evidence were accepted, it would not constitute a basis for concluding that he may be subjected to harm by reason of an imputed political opinion.
Case: Magic Menu Systems Pty Ltd v AFI Facilitation Pty Ltd (1997) 72 FCR 261
Outcome: cited
The second and third respondents argued in the alternative that, in any event, the assignment of a cause of action should be struck down as against public policy. It was submitted that the deed purported to sell a cause of action which was against public policy and amounted to champerty: Magic Menu Systems Pty Ltd v AFI Facilitation Pty Ltd (1997) 72 FCR 261. 22 It was submitted that the present situation differs from that of a litigation funder who would provide funds for the action in exchange for a percentage of the proceeds, because in this case the cause of action was being transferred and was being pursued by someone other than the person to whom the cause of action originally accrued. It was alleged that this was a case of buying and selling causes of action.
Case: Gore v Justice Corporation [2002] FCA 354 ; (2002) 119 FCR 429
Outcome: cited
The tort of champerty was abolished in this State in 1995. It would therefore be inappropriate to strike out a proceeding because there had been an assignment of a cause of action from one trust to another. It may be, as was suggested in Gore v Justice Corporation [2002] FCA 354 ; (2002) 119 FCR 429, that a particular agreement might be still contrary to public policy, but that would not be decided on an application of this kind and in the absence of evidence.
Case: Chapman v Luminis (No 5) [2001] FCA 1106 ; (2001) 123 FCR 62
Outcome: cited
In relation to their third argument, the second and third respondents submitted, relying on Chapman v Luminis (No 5) [2001] FCA 1106 ; (2001) 123 FCR 62, that as a matter of law it is not permissible to assign a bare cause of action under the Trade Practices Act. That is probably so: Pritchard v Racecage (1997) 72 FCR 203. Further, it was contended, relying on Poulton v The Commonwealth [1952] HCA 70 ; (1953) 89 CLR 540 at 602, that a right to litigate at common law cannot be assigned. It was contended that the wording of the assignment purported to assign a bare right to sue, which is not an assignable interest. That is less clear and, in my opinion, may not be decided, again without evidence, on an application of this kind.
Case: Pritchard v Racecage (1997) 72 FCR 203
Outcome: cited
In relation to their third argument, the second and third respondents submitted, relying on Chapman v Luminis (No 5) [2001] FCA 1106 ; (2001) 123 FCR 62, that as a matter of law it is not permissible to assign a bare cause of action under the Trade Practices Act. That is probably so: Pritchard v Racecage (1997) 72 FCR 203. Further, it was contended, relying on Poulton v The Commonwealth [1952] HCA 70 ; (1953) 89 CLR 540 at 602, that a right to litigate at common law cannot be assigned. It was contended that the wording of the assignment purported to assign a bare right to sue, which is not an assignable interest. That is less clear and, in my opinion, may not be decided, again without evidence, on an application of this kind.
Case: Poulton v The Commonwealth [1952] HCA 70 ; (1953) 89 CLR 540
Outcome: cited
In relation to their third argument, the second and third respondents submitted, relying on Chapman v Luminis (No 5) [2001] FCA 1106 ; (2001) 123 FCR 62, that as a matter of law it is not permissible to assign a bare cause of action under the Trade Practices Act. That is probably so: Pritchard v Racecage (1997) 72 FCR 203. Further, it was contended, relying on Poulton v The Commonwealth [1952] HCA 70 ; (1953) 89 CLR 540 at 602, that a right to litigate at common law cannot be assigned. It was contended that the wording of the assignment purported to assign a bare right to sue, which is not an assignable interest. That is less clear and, in my opinion, may not be decided, again without evidence, on an application of this kind.
Case: Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2 ; (2003) 211 CLR 476
Outcome: cited
At the resumed hearing, the applicant proceeded upon the Notice of Appeal and abandoned any reliance upon the application for the constitutional writs. Of course, in doing so, the applicant was thereby confined to an appeal on a question of law: s 44(1) of the AAT Act. Moreover, he was confined to a question of law which involved jurisdictional error: Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2 ; (2003) 211 CLR 476. If there were an error of law which was not jurisdictional in character it could not be challenged or appealed against, reviewed, quashed or called into question in this Court: s 474(1) of the Act. The appellant's counsel accepted the burden of establishing jurisdictional error as a prerequisite to success on this appeal. 27 The respondent did not contend that the appeal was out of time: s 44(2A)(a) of the AAT Act. Indeed, the respondent expressly conceded that the appeal was brought within time. 28 The Act empowers the Minister or the Minister's delegate to cancel a visa that has been granted to a person if the Minister or the delegate reasonably suspects that the person has not passed the character test and the person does not satisfy the Minister or the delegate that the person passes the character test: s 501(2) of the Act.
Case: Teoh v Minister for Immigration and Ethnic Affairs (1994) 49 FCR 409
Outcome: referred to
At that time the statutory discretion to grant or refuse an applicant resident status in s 6(2) of the Act did not address the interests of the applicant's children. In the Full Court of the Federal Court ( Teoh v Minister for Immigration and Ethnic Affairs (1994) 49 FCR 409), the Court held that although the Convention on the Rights of the Child was not part of the Australian Municipal Law, ratification of the Convention by Australia was a statement to the community of acceptance of its provisions by Australia. It therefore provided parents and children with a legitimate expectation that actions by the Commonwealth affecting or concerning children would be conducted in a manner which adhered to the relevant principles of the Convention. 73 The Court held that where a decision involved the exercise of a discretion which concerned the best interests of children, the decision maker, in the exercise of that discretionary power, would need to consider the best interests of those children. 74 The Minister appealed to the High Court contending that the Full Court had raised the doctrine of legitimate expectation to a question of substantive fairness. The Minister argued that no executive Act, including accession to a Convention, could confine the otherwise unconfined discretion by establishing criteria which are bound to be applied.
Case: Navarrete v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCA 1723
Outcome: distinguished
However, Mr Ower argued that that was the effect of two decisions of Allsop J; first, in Perez v Minister for Immigration &amp; Multicultural Affairs [2002] FCA 450 ; (2002) 119 FCR 454 (' Perez '); and, secondly, in Navarrete v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCA 1723 (' Navarrete '). 93 In Navarrete , a citizen of Chile had his visa cancelled under s 501 of the Migration Act . In that case, Ministerial Direction No. 21 was provided to the applicant who was advised that the Minister would 'have regard to ... and the attached Minister's Direction No. 21 titled (Directions under Section 499) '. The applicant responded. The Department wrote again to the applicant advising the applicant that he had 'failed to clearly address paragraphs 2.13-2.17 of Direction 21, which relates to "the best interests of the child" and "other considerations"'. The applicant was provided with a further copy of Direction No. 21. The applicant responded again and addressed 'the best interests of the child' and 'other considerations' in some detail. 94 The applicant contended that there had been a failure to afford procedural fairness relying on Teoh's case.