mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Reading Australia Pty Ltd v Australian Mutual Provident Society (1999) 217 ALR 495
Outcome: cited
Order 29(2) can be a useful procedure. It was utilised at an earlier stage of this proceeding. However, both authority and practical experience indicate that use of it should be approached cautiously ( Save the Ridge Inc v Commonwealth [2005] FCAFC 203 at [15] ; Reading Australia Pty Ltd v Australian Mutual Provident Society (1999) 217 ALR 495). It would be unusual for the procedure to be adopted without the consent of both parties in a case such as this. Breach of contract is a common law cause of action. The common law only envisages one result the ultimate verdict. As I indicated to counsel during the course of argument, if an application for an order had been made by consent in advance, I may have acceded to it. I probably would have declined to do so if it had been opposed by the moving party, in this case Goldspar. But the occasion did not arise for consideration of that question as no application was made by either party. It is not suggested that this is a case in which the Court and the parties proceeded upon the basis that an order would be made pursuant to O 29(2) but neglected to attend to that formality.
Case: Save the Ridge Inc v Commonwealth [2005] FCAFC 203
Outcome: cited
Order 29(2) can be a useful procedure. It was utilised at an earlier stage of this proceeding. However, both authority and practical experience indicate that use of it should be approached cautiously ( Save the Ridge Inc v Commonwealth [2005] FCAFC 203 at [15] ; Reading Australia Pty Ltd v Australian Mutual Provident Society (1999) 217 ALR 495). It would be unusual for the procedure to be adopted without the consent of both parties in a case such as this. Breach of contract is a common law cause of action. The common law only envisages one result the ultimate verdict. As I indicated to counsel during the course of argument, if an application for an order had been made by consent in advance, I may have acceded to it. I probably would have declined to do so if it had been opposed by the moving party, in this case Goldspar. But the occasion did not arise for consideration of that question as no application was made by either party. It is not suggested that this is a case in which the Court and the parties proceeded upon the basis that an order would be made pursuant to O 29(2) but neglected to attend to that formality.
Case: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355
Outcome: considered
Members of the High Court were at pains in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355, at [100] (per McHugh, Gummow, Kirby and Hayne JJ), to affirm that failure by a public officer to comply with a statutory obligation, while it may or may not affect the validity of an act or decision in question, may nevertheless be attended by legal consequences and that a court may restrain subsequent administrative action predicated upon supposed compliance with the unmet statutory condition until the default has been remedied. 9 I add that the appellant sought to raise some new grounds without descending to particulars. There appears to be nothing in any of them. 10 The appeal will be dismissed with costs assessed at $3,000. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick. Associate: Dated: 4 July 2007 Counsel for the Appellant: The appellant appeared in person Counsel for the Respondent: Rachel Pepper Solicitor for the Respondent: DLA Phillips Fox Date of Hearing: 10 May 2007 Date of Judgment: 10 May 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/863.html
Case: SZICO v The Minister for Immigration and Multicultural and Indigenous Affairs [2006] FMCA 435
Outcome: referred to
His Honour accepted the submission of the first respondent that the only relevant consequence of a breach of s 430B(6) was to suspend the running of time for the purposes of the statutory time limits on judicial review and that no jurisdictional error arose. In this regard his Honour followed WACB v The Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 50 ; (2004) 210 ALR 190 and SZICO v The Minister for Immigration and Multicultural Affairs [2006] FMCA 435 at [14] . As his Honour pointed out at [26]: "The potential mischief resulting from a failure to comply with sub section [430B](6) is that an applicant may hypothetically be deprived of the opportunity of seeking judicial review of a tribunal decision." His Honour continued at [26]-[27]: However, as was made clear by the High Court in WACB , that mischief does not in fact arise because time does not run for the purposes of statutory time limits on access to the courts until the required notification is given. Hypothetically, an applicant might challenge a purported notification of a tribunal decision which did not meet the requirements of s 430B(6) but there would be no point in doing so, given that in the absence of the required notification, it remains open to an applicant to apply in this Court or the High Court to challenge the Tribunal decision, not simply the notification. It follows, and I find that, compliance with s 430B(6) is not generally a condition subsequent to the making of a lawful decision in accordance with Part 7 of the Migration Act . It is a separate and enforceable statutory obligation on the Tribunal and a failure to comply with it, in accordance with the High Court decision in WACB, will render inoperative current statutory time limits on judicial review applications to the courts. The point is academic in this case as the judicial review application was filed within the prescribed time limit.
Case: WACB v The Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 50 ; (2004) 210 ALR 190
Outcome: referred to
His Honour accepted the submission of the first respondent that the only relevant consequence of a breach of s 430B(6) was to suspend the running of time for the purposes of the statutory time limits on judicial review and that no jurisdictional error arose. In this regard his Honour followed WACB v The Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 50 ; (2004) 210 ALR 190 and SZICO v The Minister for Immigration and Multicultural Affairs [2006] FMCA 435 at [14] . As his Honour pointed out at [26]: "The potential mischief resulting from a failure to comply with sub section [430B](6) is that an applicant may hypothetically be deprived of the opportunity of seeking judicial review of a tribunal decision." His Honour continued at [26]-[27]: However, as was made clear by the High Court in WACB , that mischief does not in fact arise because time does not run for the purposes of statutory time limits on access to the courts until the required notification is given. Hypothetically, an applicant might challenge a purported notification of a tribunal decision which did not meet the requirements of s 430B(6) but there would be no point in doing so, given that in the absence of the required notification, it remains open to an applicant to apply in this Court or the High Court to challenge the Tribunal decision, not simply the notification. It follows, and I find that, compliance with s 430B(6) is not generally a condition subsequent to the making of a lawful decision in accordance with Part 7 of the Migration Act . It is a separate and enforceable statutory obligation on the Tribunal and a failure to comply with it, in accordance with the High Court decision in WACB, will render inoperative current statutory time limits on judicial review applications to the courts. The point is academic in this case as the judicial review application was filed within the prescribed time limit.
Case: Kowalski v MMAL Staff Superannuation Fund Pty Ltd (2007) 242 ALR 370
Outcome: cited
two previous occasions I have refused summarily to dismiss Mr Kowalski's application and gave him leave to file and serve an amended application and statement of claim: see Kowalski v MMAL Staff Superannuation Fund Pty Ltd (2007) 242 ALR 370 and Kowalski v MMAL Staff Superannuation Fund Pty Ltd (No 2) [2008] FCA 691. On the latter occasion I indicated that I was providing him with his last opportunity to provide an intelligible and unobjectionable pleading. I have, though with little optimism, recommended to him that he obtain competent legal assistance. He has to date demonstrated little understanding both of the law he seeks to invoke in his own favour and of how to present, albeit in lay form, a clear statement of the claim he seeks to prosecute. My recommendation was not accepted. As he has done in so many proceedings in this Court and in other courts and tribunals concerning his relationship with his past employer, Mitsubishi Motors Australia Ltd (MMAL), he acted without legal representation on the motion presently before me. That motion, brought by the two respondents, again seeks the summary dismissal of the proceeding pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) or else under O 20 r 5 of the Federal Court Rules .
Case: Kowalski v MMAL Staff Superannuation Fund Pty Ltd (No 2) [2008] FCA 691
Outcome: cited
two previous occasions I have refused summarily to dismiss Mr Kowalski's application and gave him leave to file and serve an amended application and statement of claim: see Kowalski v MMAL Staff Superannuation Fund Pty Ltd (2007) 242 ALR 370 and Kowalski v MMAL Staff Superannuation Fund Pty Ltd (No 2) [2008] FCA 691. On the latter occasion I indicated that I was providing him with his last opportunity to provide an intelligible and unobjectionable pleading. I have, though with little optimism, recommended to him that he obtain competent legal assistance. He has to date demonstrated little understanding both of the law he seeks to invoke in his own favour and of how to present, albeit in lay form, a clear statement of the claim he seeks to prosecute. My recommendation was not accepted. As he has done in so many proceedings in this Court and in other courts and tribunals concerning his relationship with his past employer, Mitsubishi Motors Australia Ltd (MMAL), he acted without legal representation on the motion presently before me. That motion, brought by the two respondents, again seeks the summary dismissal of the proceeding pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) or else under O 20 r 5 of the Federal Court Rules .
Case: Paramasivam v University of New South Wales [2007] FCAFC 176
Outcome: cited
is not a matter in which it is necessary to consider in detail the varying and by no means harmonious views that have been expressed by judges as to the burden of the "no reasonable prospect of successfully prosecuting" formula and of the nature of, and limits to, the assessment it requires be made. As I have indicated, I have a plethora of evidence before me and the principal task it presents is the making of an assessment of it, as a matter of fact, as to whether Mr Kowalski has no reasonable prospect of proving each of the facts necessary to perfect the elements of the causes of action he advances in his pleading: cf Paramasivam v University of New South Wales [2007] FCAFC 176 at [41] ; see also Jefferson Ford Pty Ltd v Ford Motor Co of Australia Ltd [2008] FCAFC 60 ; (2008) 167 FCR 372 at [23] . Beyond that, as I will indicate, there is also a question whether his claims are legally untenable in any event.
Case: White Industries Aust Ltd v Federal Commissioner of Taxation [2007] FCA 511 ; (2007) 160 FCR 298
Outcome: cited
31A is not concerned as such with the bare question whether a person's pleading discloses a reasonable cause of action. Its concern is with substance and not just form. But as Lindgren J observed in White Industries Aust Ltd v Federal Commissioner of Taxation [2007] FCA 511 ; (2007) 160 FCR 298 at [47] , while the existence of a reasonable cause of action and the pleading of a reasonable cause of action remain distinct concepts [a] failure after ample opportunity to plead a reasonable cause of action may suggest that none exists and therefore that the applicant has no reasonable prospects of success.
Case: Sayseng v Kellogg Superannuation Pty Ltd [2003] NSWSC 945
Outcome: cited
Kowalski (No 2) I set out in relatively short form the principles governing the review of a decision of a superannuation trustee denying a member's entitlement to a claimed benefit. As I then indicated there is now a significant body of Australian case law dealing with that matter and many of the cases have involved claims for total and permanent disability benefits having criteria similar to those embedded in cl 1(6) of the Deed: see eg Jeffrey Guy Baker v Local Government Superannuation Scheme Pty Ltd [2007] NSWSC 1173 ; Hay v Total Risk Management Pty Ltd [2004] NSWSC 94 ; Sayseng v Kellogg Superannuation Pty Ltd [2003] NSWSC 945 ; Flegeltaub v Telstra Super Pty Ltd [2000] VSC 107 ; Minehan v AGL Employees Superannuation Pty Ltd (1998) 134 ACTR 1 ; Vidovic v Email Superannuation Pty Ltd (unreported, Supreme Court of New South Wales, Bryson J, 3 March 1995).
Case: Minehan v AGL Employees Superannuation Pty Ltd (1998) 134 ACTR 1
Outcome: cited
Kowalski (No 2) I set out in relatively short form the principles governing the review of a decision of a superannuation trustee denying a member's entitlement to a claimed benefit. As I then indicated there is now a significant body of Australian case law dealing with that matter and many of the cases have involved claims for total and permanent disability benefits having criteria similar to those embedded in cl 1(6) of the Deed: see eg Jeffrey Guy Baker v Local Government Superannuation Scheme Pty Ltd [2007] NSWSC 1173 ; Hay v Total Risk Management Pty Ltd [2004] NSWSC 94 ; Sayseng v Kellogg Superannuation Pty Ltd [2003] NSWSC 945 ; Flegeltaub v Telstra Super Pty Ltd [2000] VSC 107 ; Minehan v AGL Employees Superannuation Pty Ltd (1998) 134 ACTR 1 ; Vidovic v Email Superannuation Pty Ltd (unreported, Supreme Court of New South Wales, Bryson J, 3 March 1995).
Case: Vidovic v Email Superannuation Pty Ltd (unreported, Supreme Court of New South Wales, Bryson J, 3 March 1995)
Outcome: cited
Kowalski (No 2) I set out in relatively short form the principles governing the review of a decision of a superannuation trustee denying a member's entitlement to a claimed benefit. As I then indicated there is now a significant body of Australian case law dealing with that matter and many of the cases have involved claims for total and permanent disability benefits having criteria similar to those embedded in cl 1(6) of the Deed: see eg Jeffrey Guy Baker v Local Government Superannuation Scheme Pty Ltd [2007] NSWSC 1173 ; Hay v Total Risk Management Pty Ltd [2004] NSWSC 94 ; Sayseng v Kellogg Superannuation Pty Ltd [2003] NSWSC 945 ; Flegeltaub v Telstra Super Pty Ltd [2000] VSC 107 ; Minehan v AGL Employees Superannuation Pty Ltd (1998) 134 ACTR 1 ; Vidovic v Email Superannuation Pty Ltd (unreported, Supreme Court of New South Wales, Bryson J, 3 March 1995). Finally, though it is not a matter which it is appropriate for me to enter upon in this proceeding, I acknowledge that there remains a real question as to the appropriateness of applying to superannuation trusts as of course principles of review evolved in contexts of settlor bounty and charity contexts which are remote from the modern employment relationship: see eg Vidovic v Email Superannuation Pty Ltd ; Baker v Local Government Superannuation Scheme at [8]; and see generally Dal Pont and Chalmers, Equity and Trusts in Australia , 727 ff (4 th ed, 2007). THE CLAIMS (i) The 1994 Claim: FASC paras 14, 16, 29.1 and 30
Case: Karger v Paul [1984] VR 161
Outcome: applied
present purposes, I accept that the grounds upon which a court will review an exercise of a superannuation trustee's discretionary determination are essentially those stated by McGarvie J in Karger v Paul [1984] VR 161 , though they have been somewhat elaborated if not adapted: see Baker v Local Government Superannuation Scheme Pty Ltd at [8] in the superannuation context. They are that (i) the discretion was not exercised in good faith; (ii) there was not a real and genuine consideration of the correct question; (iii) the discretion was not exercised for the purpose for which it was conferred; (iv) if the trustee has given reasons for its exercise of discretion, those reasons were not sound; and (v) if the material before the trustee can be identified, that the trustee's decision was one that no reasonable person could come to on that material.
Case: Trident General Insurance Co Ltd v McNiece Bros Pty Ltd [1988] HCA 44 ; (1988) 165 CLR 107
Outcome: applied
readily acknowledge that the trust device has in practice proved "a disappointing and unreliable instrument" for circumventing the privity doctrine: see Cheshire and Fifoot's Law of Contract , [7.44] (9 th Aust ed, 2008). Nonetheless, in this particular setting both where trust and contract so obviously interact: see Dal Pont and Chalmers, at 727; and where the contracting parties intent was, on the face of the Heads of Agreement, to bring the Trustee within its purview so both to benefit and to burden it, the observations of Deane J in Trident General Insurance Co Ltd v McNiece Bros Pty Ltd [1988] HCA 44 ; (1988) 165 CLR 107 at 147-148 are singularly apposite. His Honour observed that the requisite intention of the contracting parties to constitute a trust of a promise for a third party should be inferred: ... if it clearly appears that it was the intention of the promise that the third party should himself be entitled to insist upon performance of the promise and receipt of the benefit and if trust is, in the circumstances, the appropriate legal mechanism for giving effect to that intention. A fortiori, equity's requirement of an intention to create a trust will be at least prima facie satisfied if the terms of the contract expressly or impliedly manifest that intention as the joint intention of both promisor and promise. ... If the trustee of the promise declines to institute [proceedings for the enforcement of the promise or damages for its breach], the beneficiary can bring proceedings against the promisor in his own name, joining the trustee as defendant. See also Bahr v Nicolay (No 2) [1988] HCA 16 ; (1988) 164 CLR 604 at 618; Ford and Lee, Principles of the Law of Trusts , [17.11010]. It is not necessary that the contracting parties know and understand that they are creating a trust. It is sufficient that they intend to create a relationship which, in equity, conforms to that of a trust: see Twinsectra Ltd v Yardley [2002] 2 AC 164 at [71]; Ford and Lee at [2035].
Case: Bahr v Nicolay (No 2) [1988] HCA 16 ; (1988) 164 CLR 604
Outcome: cited
readily acknowledge that the trust device has in practice proved "a disappointing and unreliable instrument" for circumventing the privity doctrine: see Cheshire and Fifoot's Law of Contract , [7.44] (9 th Aust ed, 2008). Nonetheless, in this particular setting both where trust and contract so obviously interact: see Dal Pont and Chalmers, at 727; and where the contracting parties intent was, on the face of the Heads of Agreement, to bring the Trustee within its purview so both to benefit and to burden it, the observations of Deane J in Trident General Insurance Co Ltd v McNiece Bros Pty Ltd [1988] HCA 44 ; (1988) 165 CLR 107 at 147-148 are singularly apposite. His Honour observed that the requisite intention of the contracting parties to constitute a trust of a promise for a third party should be inferred: ... if it clearly appears that it was the intention of the promise that the third party should himself be entitled to insist upon performance of the promise and receipt of the benefit and if trust is, in the circumstances, the appropriate legal mechanism for giving effect to that intention. A fortiori, equity's requirement of an intention to create a trust will be at least prima facie satisfied if the terms of the contract expressly or impliedly manifest that intention as the joint intention of both promisor and promise. ... If the trustee of the promise declines to institute [proceedings for the enforcement of the promise or damages for its breach], the beneficiary can bring proceedings against the promisor in his own name, joining the trustee as defendant. See also Bahr v Nicolay (No 2) [1988] HCA 16 ; (1988) 164 CLR 604 at 618; Ford and Lee, Principles of the Law of Trusts , [17.11010]. It is not necessary that the contracting parties know and understand that they are creating a trust. It is sufficient that they intend to create a relationship which, in equity, conforms to that of a trust: see Twinsectra Ltd v Yardley [2002] 2 AC 164 at [71]; Ford and Lee at [2035].
Case: Twinsectra Ltd v Yardley [2002] 2 AC 164
Outcome: cited
readily acknowledge that the trust device has in practice proved "a disappointing and unreliable instrument" for circumventing the privity doctrine: see Cheshire and Fifoot's Law of Contract , [7.44] (9 th Aust ed, 2008). Nonetheless, in this particular setting both where trust and contract so obviously interact: see Dal Pont and Chalmers, at 727; and where the contracting parties intent was, on the face of the Heads of Agreement, to bring the Trustee within its purview so both to benefit and to burden it, the observations of Deane J in Trident General Insurance Co Ltd v McNiece Bros Pty Ltd [1988] HCA 44 ; (1988) 165 CLR 107 at 147-148 are singularly apposite. His Honour observed that the requisite intention of the contracting parties to constitute a trust of a promise for a third party should be inferred: ... if it clearly appears that it was the intention of the promise that the third party should himself be entitled to insist upon performance of the promise and receipt of the benefit and if trust is, in the circumstances, the appropriate legal mechanism for giving effect to that intention. A fortiori, equity's requirement of an intention to create a trust will be at least prima facie satisfied if the terms of the contract expressly or impliedly manifest that intention as the joint intention of both promisor and promise. ... If the trustee of the promise declines to institute [proceedings for the enforcement of the promise or damages for its breach], the beneficiary can bring proceedings against the promisor in his own name, joining the trustee as defendant. See also Bahr v Nicolay (No 2) [1988] HCA 16 ; (1988) 164 CLR 604 at 618; Ford and Lee, Principles of the Law of Trusts , [17.11010]. It is not necessary that the contracting parties know and understand that they are creating a trust. It is sufficient that they intend to create a relationship which, in equity, conforms to that of a trust: see Twinsectra Ltd v Yardley [2002] 2 AC 164 at [71]; Ford and Lee at [2035].