mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Imobilari Pty Ltd v Opes Prime Stockbroking Ltd (in liq) [2008] FCA 1920 , 252 ALR 41
Outcome: cited
it matters not whether the forensic purpose of the Second to Sixth Respondents is tested by reference to their outstanding Motions to strike out the existing pleadings or by reference to their application for summary judgment pursuant to s 31A of the 1976 Act. Evidence as to facts is relevant to an application made under s 31A: Imobilari Pty Ltd v Opes Prime Stockbroking Ltd [2008] FCA 1920 at [3] to [8] [2008] FCA 1920 ; , 252 ALR 41 at 43 to 45 per Finkelstein J. But it was accepted by Senior Counsel on behalf of the Second to Sixth Respondents that those submissions of relevance to the identification of the present forensic purpose being pursued were its submissions that judgment should be entered pursuant to s 31A (in summary form) by reason of: the alleged failure to properly identify those persons to whom a public duty was said to be owed for the purposes of the tort of misfeasance; the failure to properly plead the manner in which any breach of duty was said to have caused loss or damage; and the failure to properly plead the loss or damage said to have been suffered. These were all correctly characterised by Counsel for Pharm-a-Care and IMF as " pleading points ". Such facts as may have been exposed by documents otherwise falling within the subpoena could thus not assist the Second to Sixth Respondents in its forthcoming application for judgment pursuant to s 31A. Nor is the identification of the forensic purpose sought to be pursued by the Second to Sixth Respondents in seeking the production of documents from IMF (Australia) Limited assisted by submissions as to whether or not Pharm-a-Care has complied with the obligation imposed upon it by O 15 r 10.
Case: IO Group Inc v Prestige Club Australasia Pty Ltd [2008] FCA 1147
Outcome: cited
stage at which a subpoena is issued will necessarily depend upon the facts and circumstances of each individual case. Such relevance as the subpoena was seen as potentially having at the time the order was made for its issue has been answered by: the identification or clarification of the forensic purpose being pursued by the Second to Sixth Respondents; and the submissions now advanced by Counsel on behalf of both Pharm-a-Care and IMF (Australia) Limited. Rejected is the submission advanced on behalf of the Second to Sixth Respondents that the documents have some present relevance &#8212; be it described as " adjectival " or otherwise ( Trade Practices Commission v Arnotts Ltd (1989) 88 ALR at 103; IO Group Inc v Prestige Club Australasia Pty Ltd [2008] FCA 1147 at [38] ). This conclusion in respect to the present subpoena does not preclude an application being made for an order under O 27 r 2 for a subpoena in the same or like terms at some future date. The Orders of the Court are: The subpoena as issued at the request of the Second to Sixth Respondents and addressed to IMF (Australia) Limited and returnable on 20 October 2009 is set aside. The Second to Sixth Respondents are to pay the costs of IMF (Australia) Limited and Pharm-a-Care Laboratories Pty Ltd. I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick. Associate: Dated: 26 October 2009 Counsel for the Applicant and for IMF (Australia) Limited: Mr M J Darke Solicitor for the Applicant: McLachlan Thorpe Solicitor for IMF (Australia) Limited: HBL Ebsworth Solicitor for the First Respondent: Mr M Cessario (Corrs Chambers Westgarth) Counsel for the Second to Sixth Respondents: Mr J E Marshall SC with Ms V McWilliam Solicitor for the Second to Sixth Respondents: Moray &amp; Agnew Date of Hearing: 19 October 2009 Date of Judgment: 26 October 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/1203.html
Case: Kennedy v Wallace [2004] FCA 636 , 136 FCR 114
Outcome: cited
importantly, however, it is not considered that there is any legitimate forensic purpose now being pursued by the Second to Sixth Respondents in seeking the production of the documents embraced by the subpoena at this point of time. In so concluding, it is recognised that a subpoena can be made returnable at a date prior to hearing. Indeed, there may well be many practical reasons why such a course may be desirable: Southern Pacific Hotel Services Inc v Southern Pacific Hotel Corporation Ltd [1984] 1 NSWLR 710 at 716 to 717 per Clarke J. So much was not put in issue by Counsel on behalf of Pharm-a-Care and IMF. A subpoena may be made returnable at a date prior to hearing where it is " in the interests of justice and the proper and expeditious conduct of a proceeding " to do so: Hughes v Western Australian Cricket Association Inc (1986) 66 ALR 541 at 543 per Toohey J. The time at which a subpoena is sought or served may, however, be of relevance to an order setting it aside: cf Kennedy v Wallace [2004] FCA 636 at [26] , [2004] FCA 636 ; 136 FCR 114 at 121 per Gyles J.
Case: Southern Pacific Hotel Services Inc v Southern Pacific Hotel Corporation Ltd [1984] 1 NSWLR 710
Outcome: cited
importantly, however, it is not considered that there is any legitimate forensic purpose now being pursued by the Second to Sixth Respondents in seeking the production of the documents embraced by the subpoena at this point of time. In so concluding, it is recognised that a subpoena can be made returnable at a date prior to hearing. Indeed, there may well be many practical reasons why such a course may be desirable: Southern Pacific Hotel Services Inc v Southern Pacific Hotel Corporation Ltd [1984] 1 NSWLR 710 at 716 to 717 per Clarke J. So much was not put in issue by Counsel on behalf of Pharm-a-Care and IMF. A subpoena may be made returnable at a date prior to hearing where it is " in the interests of justice and the proper and expeditious conduct of a proceeding " to do so: Hughes v Western Australian Cricket Association Inc (1986) 66 ALR 541 at 543 per Toohey J. The time at which a subpoena is sought or served may, however, be of relevance to an order setting it aside: cf Kennedy v Wallace [2004] FCA 636 at [26] , [2004] FCA 636 ; 136 FCR 114 at 121 per Gyles J.
Case: Trade Practices Commission v Arnotts Limited (No 2) (1989) 88 ALR 90
Outcome: followed
various grounds upon which an application may be made to have a subpoena set aside need not be presently canvassed in any great detail. Some of these grounds have been usefully collated by Powell J in Botany Bay Instrumentation &amp; Control Pty Ltd v Stewart [1984] 3 NSWLR 98 at 100 as follows (citations omitted): Although a reference to the authorities makes it tolerably plain that the court will exercise its undoubted jurisdiction to set aside a subpoena in a variety of cases, as, for example: 1. unless the subpoena was issued for the purpose of a pending trial, hearing or application ... 2. where to require the attendance of a witness would be oppressive ... 3. where the subpoena had not been issued bona fide for the purpose of obtaining relevant evidence and the witness to whom the subpoena had been addressed was unable to give relevant evidence ... 4. where the subpoena has been used for the purpose of obtaining discovery or further discovery against a party ... 5. where the subpoena has been used for the purpose of obtaining discovery against a third party... 6. where to require a party to comply with a subpoena to produce documents would be oppressive ... 7. where the subpoena has been issued for a purpose which is impermissible, as, for example, "fishing" ... This summary was accepted by Beaumont J in Trade Practices Commission v Arnotts Limited (No 2) (1989) 88 ALR 90 at 102 and by Conti J in Mandic v Phillis [2005] FCA 1279 at [33] , 225 ALR 760 at 771 to 772.
Case: Re Universal Press Pty Limited v Provest Ltd (unreported, FCA, Hill J, G136 of 1989, 20 July 1989)
Outcome: considered
stage which a proceeding has reached, and the issues to be resolved at interlocutory applications, are matters of immediate relevance to whether an order should be made for a subpoena or for a subpoena to be set aside: Re Universal Press Pty Limited v Provest Ltd (unreported, FCA, Hill J, G136 of 1989, 14 July 1989). Hill J there observed: [38] With respect, the interests of justice and efficiency, will in most cases be best served if subpoenas are issued requiring documents to be produced at a time before the hearing but it does not follow from that that it will ordinarily be appropriate in the interest of justice for a subpoena to be made returnable before discovery itself has been given by the parties to each other or indeed before, as in this case, the defendant has even filed a statement of defence in the proceedings. Rather it seems to me, so that the issues are defined, that it will be a rare case indeed where the interests of justice will require a subpoena to be issued until the ordinary interlocutory steps have been completed. [39] It must ultimately be borne in mind that a subpoena is intended to require the production of documents so that those documents can be available for tender during a trial and for the purposes of it. I use trial as encompassing of course interlocutory motions should such motions be relevant. In this context I would refer to what was said by Bowen LJ in Elder v. Carter [(1890) 25 QBD 194] (at p 201, 202): "But I am as certain as one can be of anything with regard to practice, that does not intend to enact that at any stage of a proceeding a judge may make, subject to his discretion, an order on a third person for production of a document which belongs to the third person, unless the production of it at that moment is a thing to which the parties are entitled for the purpose of justice; and you are not entitled, for the purpose of justice at any moment during suit, simply because you are a litigant, to see what is in the possession of a third person and to have production of it. Such a thing was never heard of ..." See also: Botany Bay Instrumentation &amp; Control Pty Ltd v Stewart [1984] 3 NSWLR at 101 per Powell J.
Case: Ex parte Selby; in the matter of Selby and Norton (1855) 43 ER 1427
Outcome: cited
The public and private importance of the change of status in making a party bankrupt is too well known to require detailed citation. It is not a matter merely between debtor and creditor. It affects creditors generally and the public. The bankrupt, while bankrupt, has his or her status changed. Conduct which might otherwise be innocent may become punishable at law. There remains a stigma to the person, often as a mark of failure in life, sometimes of a particularly humiliating character. Though in a dissenting judgment, the seriousness of the matter was luminously expressed by Deane J in Kleinwort Benson Australia Pty Ltd v Crowl [1988] HCA 34 ; (1999) 165 CLR 71 at 82. The public and private interest in discharge or annulment can be seen in many cases such as Re Barton (1980) 43 FLR 245, Re Stainton; Ex parte Board of Trade (1887) 19 QBD 182, Re Haines (1937) 10 ABC 83, Re Gray (1960) 19 ABC 29 and Re Prince (1961) 19 ABC 39 and see also Ex parte Selby; in the matter of Selby and Norton (1855) 43 ER 1437 per Lord Justice Knight-Bruce.
Case: Kleinwort Benson Australia Pty Ltd v Crowl [1988] HCA 34 ; (1999) 165 CLR 71
Outcome: cited
The public and private importance of the change of status in making a party bankrupt is too well known to require detailed citation. It is not a matter merely between debtor and creditor. It affects creditors generally and the public. The bankrupt, while bankrupt, has his or her status changed. Conduct which might otherwise be innocent may become punishable at law. There remains a stigma to the person, often as a mark of failure in life, sometimes of a particularly humiliating character. Though in a dissenting judgment, the seriousness of the matter was luminously expressed by Deane J in Kleinwort Benson Australia Pty Ltd v Crowl [1988] HCA 34 ; (1999) 165 CLR 71 at 82. The public and private interest in discharge or annulment can be seen in many cases such as Re Barton (1980) 43 FLR 245, Re Stainton; Ex parte Board of Trade (1887) 19 QBD 182, Re Haines (1937) 10 ABC 83, Re Gray (1960) 19 ABC 29 and Re Prince (1961) 19 ABC 39 and see also Ex parte Selby; in the matter of Selby and Norton (1855) 43 ER 1437 per Lord Justice Knight-Bruce.
Case: Oates v Commissioner of Taxation (1990) 27 FCR 289
Outcome: referred to
It goes without saying that the procedures required should be viewed from the perspective of the interests of all creditors. In a given case, which is not this one, a Court might look very carefully at any procedure leading to a composition dominated by creditors related to the bankrupt or reflecting a lack of commercial morality or sharp practice. Parliament, however, has chosen to provide in s 74(5) for the annulment and thus for the consequences that flow therefrom: Oates v Commissioner of Taxation (1990) 27 FCR 289 , Re Coyle (1993) 42 FCR 72 , Theissbacher v MacGregor Garrick &amp; Co [1993] 2 Qd R 223, Pascoe; in the matter of Hudson [2005] FCA 1421 , Worrall v Westpac Banking Corporation (1995) 51 FCR 304 and Union Club v Battenberg [2006] NSWCA 72 ; (2006) 66 NSWLR 1.
Case: Pascoe; Re Hudson [2005] FCA 1421 
Outcome: referred to
It goes without saying that the procedures required should be viewed from the perspective of the interests of all creditors. In a given case, which is not this one, a Court might look very carefully at any procedure leading to a composition dominated by creditors related to the bankrupt or reflecting a lack of commercial morality or sharp practice. Parliament, however, has chosen to provide in s 74(5) for the annulment and thus for the consequences that flow therefrom: Oates v Commissioner of Taxation (1990) 27 FCR 289 , Re Coyle (1993) 42 FCR 72 , Theissbacher v MacGregor Garrick &amp; Co [1993] 2 Qd R 223, Pascoe; in the matter of Hudson [2005] FCA 1421 , Worrall v Westpac Banking Corporation (1995) 51 FCR 304 and Union Club v Battenberg [2006] NSWCA 72 ; (2006) 66 NSWLR 1.
Case: Prentice v Wood [2002] FCA 214 ; (2002) 119 FCR 296 
Outcome: referred to
The applicants emphasise the expression used by Sheppard J in Van Reesema v Official Trustee in Bankruptcy (1983) 69 FLR 424 at 431 when his Honour used the expression "great power" of the trustee in bankruptcy in preventing a discharge from bankruptcy occurring by entering an objection to discharge. That expression was used by the Full Court in Prentice v Wood [2002] FCA 214 ; (2002) 119 FCR 296 at 300 in discussing the power in s 149C(1)(c). I do not find those expressions of any particular assistance in construing ss 73 and 74 and in ascertaining the statutory consequence of any failure to comply (if that occurred) with ss 73 and 74 .
Case: Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355 
Outcome: applied
These considerations go not only to the construction and interpretation of the Bankruptcy Act , but also to assess the consequences of any breach of that which the statute provides for: Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355. When a statute provides for compliance with procedures laid down therein, the consequences of an absence of such compliance upon acts performed pursuant thereto must be assessed. Those procedures, if breached in some aspect, must be examined in their context in order that the Court can understand what Parliament intended to be the consequences of such breach. 58 The question whether information put forward by the bankrupts is sufficient in detail and underlying commercial substance to amount to a proposal will generally be a judgmental decision for the trustee. It may arise at the point of refusal by the trustee to convene a meeting on the basis that there is insufficient reliable material to allow her or him to give an opinion for the purposes of s 73(2A). It may arise at the point of someone seeking to restrain a meeting on the basis that what is being put is not a proposal. In those cases, a substantial question that will arise will be whether there is a proposal of sufficient clarity and reality to permit a judgment of the trustee under s 73(2A). 59 Here, the trustee took the view that there was a proposal. An opinion purporting to be under s 73(2A) was given. Voting took place. The issues are whether there was a proposal and whether the trustee gave an opinion for the purposes of s 73(2A) and if not, whether that made the resolutions, the meeting, the composition and the annulments nullities. 71 Here Mr Thomas took the view that, though there were certain inadequacies in the proposal, it was a proposal. I do not think he was wrong in that. However, even if he were, he decided to take it to the creditors and what followed has been set out above. As I have said in relation to my views on Project Blue Sky [1998] HCA 28 ; 194 CLR 355, even if the first proposal was not a proposal and even if he could not have been forced to take it to a meeting, I do not think that has the consequence of invalidating everything that followed. As I said, I think it was a proposal in that there was an arrangement capable of being accepted, whether or not its implementation was certain I think more went to its attractiveness than as to whether it was a proposal. There was no time expressed for implementation. The law will always imply a reasonable time. Again, if I am wrong and that was such as to make it not a proposal, Mr Thomas' view that it was and that it should go to the meeting was not a failure of procedure which nullifies all that flows thereafter.
Case: Re Barton (1980) 43 FLR 245
Outcome: referred to
The public and private importance of the change of status in making a party bankrupt is too well known to require detailed citation. It is not a matter merely between debtor and creditor. It affects creditors generally and the public. The bankrupt, while bankrupt, has his or her status changed. Conduct which might otherwise be innocent may become punishable at law. There remains a stigma to the person, often as a mark of failure in life, sometimes of a particularly humiliating character. Though in a dissenting judgment, the seriousness of the matter was luminously expressed by Deane J in Kleinwort Benson Australia Pty Ltd v Crowl [1988] HCA 34 ; (1999) 165 CLR 71 at 82. The public and private interest in discharge or annulment can be seen in many cases such as Re Barton (1980) 43 FLR 245, Re Stainton; Ex parte Board of Trade (1887) 19 QBD 182, Re Haines (1937) 10 ABC 83, Re Gray (1960) 19 ABC 29 and Re Prince (1961) 19 ABC 39 and see also Ex parte Selby; in the matter of Selby and Norton (1855) 43 ER 1437 per Lord Justice Knight-Bruce. 56 Relevant also, in addition to the interests of the parties, is the interest of the public, as I have said, in a discharge context: see in particular Re Barton 43 FLR 245. The important changes, retrospectively, to the status of the former bankrupt brought about by annulment and the operation of s 74(5) , with the consequential permission of the erstwhile bankrupt to move about the community with full status, also inform the need to construe the provisions with an eye to substance over formality and not subvert the intended practical freedom sought to be given to the bankrupt by procedural issues not affecting in any given case the substance of the legitimacy of the expression of the creditors' views.
Case: Re Bendel; Ex parte Bendel v Pattison (1997) 80 FCR 123 
Outcome: discussed
It is said that the trustee did not provide an opinion of the purposes of s 73(2A) because the trustee only said that it would appear that both alternatives (that is the McGurk contract and the first Naylor proposal) benefited the bankrupts' creditors. There is some force in that: Re Bendel; Ex parte Bendel v Pattison (1997) 80 FCR 123 at 132. But once again, any failure of the trustee to comply with s 73(2A) would not necessarily invalidate what flowed thereafter for the reasons I have already given. I do not see any non-compliance here as fatal to a vote. That is not to say that if the context of the case was injunctive relief to prevent a meeting going ahead because of inadequate information in the opinion of the trustee that such an injunction would not be given. 73 Also, to reinforce what I said earlier, to the extent that there has been inadequate information in the opinion of the trustee, the egregiousness or otherwise of any such error would be, as the asserted error of the trustee here is, a relevant consideration for the operation of ss 30 , 178 , 222 and 222C . Also, for completeness, I do not think it should be accepted as it was submitted here that the first Naylor proposal was not bone fide . The Naylors, who put on evidence, were not cross-examined about that; cf Re Bendel 80 FCR 123 at 131. 74 The second Naylor proposal was equally not too vague or uncertain in my view. There was an unconditional offer of payment even if it came from a finance company who had a letterhead without an address except a post box. The terms of any mortgage were not necessary to vote on. The reduced security from the Naylors' mother dropping out was not a matter for the creditors to be concerned with save and except that it may have meant that the Naylors were not able to last very long out of bankruptcy. But again, given that the creditors were being paid in one lump sum that was not their concern. As to whether there was a certainty of the money being available, these were matters, once again, for the creditors to assess and the trustee to give his opinion on. 75 The second proposal can be seen, I think, to be an amendment of the first proposal. The provider of the money changed, the mortgage arrangements changed and although there were the variations from $685,000 down to $620,000 this was in substance no different to the earlier proposal. Even if I am wrong that there was not an amendment but a new proposal, once again, given the fact that the matter went to the creditors pursuant to the meeting, I do not see the breach of procedure, if it be such, has a nullifying effect on what occurred.
Case: Re Coyle (1993) 42 FCR 72
Outcome: referred to
It goes without saying that the procedures required should be viewed from the perspective of the interests of all creditors. In a given case, which is not this one, a Court might look very carefully at any procedure leading to a composition dominated by creditors related to the bankrupt or reflecting a lack of commercial morality or sharp practice. Parliament, however, has chosen to provide in s 74(5) for the annulment and thus for the consequences that flow therefrom: Oates v Commissioner of Taxation (1990) 27 FCR 289 , Re Coyle (1993) 42 FCR 72 , Theissbacher v MacGregor Garrick &amp; Co [1993] 2 Qd R 223, Pascoe; in the matter of Hudson [2005] FCA 1421 , Worrall v Westpac Banking Corporation (1995) 51 FCR 304 and Union Club v Battenberg [2006] NSWCA 72 ; (2006) 66 NSWLR 1.
Case: Re Gray (1960) 19 ABC 29
Outcome: referred to
The public and private importance of the change of status in making a party bankrupt is too well known to require detailed citation. It is not a matter merely between debtor and creditor. It affects creditors generally and the public. The bankrupt, while bankrupt, has his or her status changed. Conduct which might otherwise be innocent may become punishable at law. There remains a stigma to the person, often as a mark of failure in life, sometimes of a particularly humiliating character. Though in a dissenting judgment, the seriousness of the matter was luminously expressed by Deane J in Kleinwort Benson Australia Pty Ltd v Crowl [1988] HCA 34 ; (1999) 165 CLR 71 at 82. The public and private interest in discharge or annulment can be seen in many cases such as Re Barton (1980) 43 FLR 245, Re Stainton; Ex parte Board of Trade (1887) 19 QBD 182, Re Haines (1937) 10 ABC 83, Re Gray (1960) 19 ABC 29 and Re Prince (1961) 19 ABC 39 and see also Ex parte Selby; in the matter of Selby and Norton (1855) 43 ER 1437 per Lord Justice Knight-Bruce.