mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Harris v Caladine [1991] HCA 9 ; (1991) 172 CLR 84
Outcome: cited
Neither submission should be accepted. The power of the District Registrar to determine or review (or "confirm, increase or reduce") the Liquidator's remuneration and expenses comes from the Court's powers under s 473(3) and (5) of the Corporations Act . A power of the Court may be delegated to a Registrar by Rules of Court: Federal Court of Australia Act 1974 (Cth) s 35A(1)(h). The powers in question were delegated by r 16.1(1) of the Federal Court (Corporations) Rules 2000 (Cth), see sch 2, Pt 1 , item 54. The exercise of a power so delegated may be reviewed by the Court or a Judge: r 16(2). For constitutional reasons (see Harris v Caladine [1991] HCA 9 ; (1991) 172 CLR 84), the review of a Registrar's decision must be a hearing de novo : Mazukov v University of Tasmania [2004] FCAFC 159 at [21] - [24] (Kiefel, Weinberg and Stone JJ). For that reason, reviews of taxation of costs in this Court are not limited as in the Schweppes' rule: Cachia v Westpac Financial Services Limited [2003] FCA 817 at [18] - [24] (Hely J).
Case: Cachia v Westpac Financial Services Limited [2003] FCA 817 at [18] - [24]
Outcome: cited
Neither submission should be accepted. The power of the District Registrar to determine or review (or "confirm, increase or reduce") the Liquidator's remuneration and expenses comes from the Court's powers under s 473(3) and (5) of the Corporations Act . A power of the Court may be delegated to a Registrar by Rules of Court: Federal Court of Australia Act 1974 (Cth) s 35A(1)(h). The powers in question were delegated by r 16.1(1) of the Federal Court (Corporations) Rules 2000 (Cth), see sch 2, Pt 1 , item 54. The exercise of a power so delegated may be reviewed by the Court or a Judge: r 16(2). For constitutional reasons (see Harris v Caladine [1991] HCA 9 ; (1991) 172 CLR 84), the review of a Registrar's decision must be a hearing de novo : Mazukov v University of Tasmania [2004] FCAFC 159 at [21] - [24] (Kiefel, Weinberg and Stone JJ). For that reason, reviews of taxation of costs in this Court are not limited as in the Schweppes' rule: Cachia v Westpac Financial Services Limited [2003] FCA 817 at [18] - [24] (Hely J).
Case: Mazukov v University of Tasmania [2004] FCAFC 159 at [21] - [24]
Outcome: cited
Neither submission should be accepted. The power of the District Registrar to determine or review (or "confirm, increase or reduce") the Liquidator's remuneration and expenses comes from the Court's powers under s 473(3) and (5) of the Corporations Act . A power of the Court may be delegated to a Registrar by Rules of Court: Federal Court of Australia Act 1974 (Cth) s 35A(1)(h). The powers in question were delegated by r 16.1(1) of the Federal Court (Corporations) Rules 2000 (Cth), see sch 2, Pt 1 , item 54. The exercise of a power so delegated may be reviewed by the Court or a Judge: r 16(2). For constitutional reasons (see Harris v Caladine [1991] HCA 9 ; (1991) 172 CLR 84), the review of a Registrar's decision must be a hearing de novo : Mazukov v University of Tasmania [2004] FCAFC 159 at [21] - [24] (Kiefel, Weinberg and Stone JJ). For that reason, reviews of taxation of costs in this Court are not limited as in the Schweppes' rule: Cachia v Westpac Financial Services Limited [2003] FCA 817 at [18] - [24] (Hely J).
Case: Venetian Nominees Pty Ltd v Conlan (1998) 20 WAR 96 at 102-106
Outcome: discussed
Mr Abbott, counsel for ASIC, relied on a number of authorities. In Venetian Nominees Pty Ltd v Conlan (1998) 20 WAR 96 the Full Court of the Supreme Court of Western Australia set aside a Master's approval of a provisional liquidator's remuneration. However, this was on the ground that the provisional liquidator had not provided "adequate evidentiary material" to enable the Court to determine whether the amounts claimed were fair and reasonable: at 102-106. In the present case, as noted above, quantum is not in issue.
Case: Re Korda; in the matter of Stockford Ltd [2004] FCA 1682 ; (2004) 140 FCR 424
Outcome: discussed
Re Korda; in the matter of Stockford Ltd [2004] FCA 1682 ; (2004) 140 FCR 424 (Finkelstein J) was concerned with the validity of resolutions fixing administrators' fees. His Honour also discussed the basis on which the quantum of administrators' and liquidators' remuneration should be assessed. Again, such questions do not arise in the present case.
Case: Ide v Ide [2004] NSWSC 751 ; (2004) 50 ACSR 324
Outcome: discussed
Ide v Ide [2004] NSWSC 751 ; (2004) 50 ACSR 324 was concerned with (hopefully) very unusual circumstances, far removed from the present case. A receiver of a partnership attended at the partnership property. In the course of an argument the defendant fired a rifle and killed the daughter of the plaintiff. The receiver's time spent in assisting police with their enquiries was held by Young CJ to be part of his "greater civic duty" and not recoverable as remuneration.
Case: Australian Securities and Investment Commission v Atlantic 3 Financial (Aust) Pty Ltd [2004] QSC 133
Outcome: discussed
Australian Securities and Investment Commission v Atlantic 3 Financial (Aust) Pty Ltd [2004] QSC 133 involved claims for remuneration by investigating accountants appointed by order of the Supreme Court of Queensland to investigate certain managed investment schemes and report to the Court. Mullins J heard detailed objections to the accountants' claims. One claim disallowed (at [26]) was for attending a meeting with ASIC to explain the report. This was on the basis that the obligation of the accountants was to report to the Court and the subsequent conference with ASIC was a matter for ASIC and "cannot be characterised as part of the supervision required to be undertaken by the accountants or as part of the work in preparing the report". Also disallowed (at [35]) were work undertaken on certain loan schemes when the accountants knew the schemes had already been wound up by the date of their appointment. These were purely questions of fact and provide no analogy to the present case where the Liquidator reported to ASIC, pursuant to his obligations under the Winding up Order, express or implied, as to the progress of the winding up.
Case: Mirror Group Newspapers plc v Maxwell [1988] 1 BCLC 638
Outcome: discussed
Mirror Group Newspapers plc v Maxwell [1988] 1 BCLC 638 supports the conclusion I have reached. The Court appointed receivers of the estate of the notorious Robert Maxwell. Questions rose over the remuneration of the receivers, including their costs of time spent in responding to a report of a committee of the House of Commons, the Select Committee on Social Security. The committee had been investigating pension funds. When it became apparent, soon after Mr Maxwell's death, that pension funds of companies associated with Mr Maxwell had been "plundered to the extent of hundred of millions of pounds" (at 658) the committee turned to investigate the receivers and other sets of administrators of the affairs of Mr Maxwell and his companies. The receivers devoted substantial amounts of time and incurred substantial expenditure in dealing with the requirements of the committee (at 659). They also spent time dealing with enquiries from the Serious Fraud Office in connection with the prosecution of Mr Maxwell's son. Ferris J said (at 659-660): "These activities are highly unusual ones for receivers to have become involved in. But they would not have arisen but for the fact that the receivers held the office to which the court had appointed them. Moreover the participation of the receivers was not initiated by them, nor was attendance before the select committee and the provision of information to it voluntary in any true sense, because physical, as well as moral, sanctions might have been applied if the receivers had ignored the requests for assistance made by the select committee. My present view is, therefore, that at least the initial response of the receivers to the requirements of the select committee and probably the entirety of their dealings with the Serious Fraud Office were wholly proper, even if also extraordinary, acts done in the course of the receivership. So far as I have residual doubts, these are attributable to the absence of full information about what has been done. In particular I am concerned that a significant part of the time and effort which the receivers have devoted to satisfying the requirements of the select committee may have been attributable to the receivers defending their conduct from criticism rather than merely providing information. If this were the case I would wish to give further consideration to the question whether the cost (whether in the form of remuneration for time spent by the receivers themselves or in disbursements paid to third parties) is properly to be paid out of the estate." 37 The present case is stronger in that the provision of information to ASIC was not extraordinary but rather an obligation expressly required by the Winding Up Order itself and indeed the very sort of obligation one would expect when a winding up occurs on the application of ASIC. Further, given the tenor of ASIC's enquiries, and particularly its letter of 20 December 2005, the essence of the Liquidator's response was the provision of information, not justification or answers to accusations.
Case: Re Narla Prospecting Proprietary Limited; Dallhold Investments Proprietary Limited v Narla Prospecting Proprietary Limited [1992] FCA 341 ; (1992) 10 ACLC 1310
Outcome: applied
note that in Re Narla Prospecting Proprietary Limited; Dallhold Investments Proprietary Limited v Narla Prospecting Proprietary Limited [1992] FCA 341 ; (1992) 10 ACLC 1310 , French J, when a member of this Court, in deciding at the behest of a holding company to wind up a subsidiary, appointed as liquidator of the subsidiary the person who was the liquidator of the holding company. That also was a case where his Honour concluded that the company should be wound up on the just and equitable ground. I also bear in mind that Messrs Worrell and Khatri are well-experienced liquidators. I confidently expect that in the event that such potential, and I consider it remote, as there is for conflict of interest does arise, that that will be the subject of application in short order to the Court by them. I am satisfied that it is appropriate that they be appointed as liquidators of Victorian Families. My attention has been drawn to an interesting and, perhaps, inconsistent position in the Act in respect of circumstances where more than one liquidator is appointed. Section 473(8) provides: If more than one liquidator is appointed by the court, the court must declare whether anything that is required or authorised by this Act be done by the liquidator is to be done by all or any one or more of the persons appointed.
Case: Cosma v Qantas Airways Ltd [2002] FCA 640 ; (2002) 124 FCR 504
Outcome: cited
"Particular employment" means the actual employment the relevant employee was required to perform pursuant to his contract of employment, not the general status of an employee in the employer's organisation: Cosma v Qantas Airways Ltd [2002] FCA 640 ; (2002) 124 FCR 504. Today the particular employment from which Mr Gordon was dismissed no longer exists. 94 On 1 May 2003 Mr Gordon entered into a contract to purchase a house at 9 Denis Drive, Riverside (a suburb of Launceston) for $142,500. He paid a deposit of $5,000. Settlement was due on 13 June 2003. The contract was subject to Westpac Bank making available a mortgage to secure a loan of $150,000. 95 After the ATO terminated his employment Mr Gordon advised Westpac accordingly. Because he then failed the bank's income test the loan application was refused. An alternative buyer was found for the property in June or July 2003. Mr Gordon's deposit was retuned, but he claims the following losses: Legal fees $476.52 Surveying fees $250.00 Building Inspection $330.00 Credit Card Fee $62.56 Total $1,089.08 In addition he claims a loss of value. The property was valued by Brothers &amp; Newton Pty Ltd of Launceston in May 2007, as at May 2003, at $250,000. Apparently there was a real estate boom in Launceston.
Case: GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd [2003] FCA 688 ; (2003) 201 ALR 55
Outcome: cited
The usual practice in the Federal Court is to adopt the rate of interest applied by the Supreme Court of the State or Territory in which the Federal Court is considering the matter: GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd [2003] FCA 688 ; (2003) 201 ALR 55 at [7] . The current rate prescribed under rule 5A of the Supreme Court Rules 2000 (Tas) is 10.5 per cent. 125 The award for lost salary is for money lost progressively over the last five years. I will allow the 10.5 per cent on roughly half that amount, say $30,000, for five years, ie $15,750. The remainder of the award, $28,030, represents compensation for loss incurred five years ago. Interest on that component will be $14,715. Total interest amounts to $30,465. 126 The parties requested leave to make submissions as to costs after reasons were delivered. There will be a direction that within seven days of delivery of judgment the applicant file and serve submissions as to costs, the respondent file and serve submissions seven days thereafter and the applicant file and serve any reply within seven days. Costs will be decided on the papers. I certify that the preceding one hundred and twenty-six (126) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey. Associate: Dated: 6 May 2008 Counsel for the Applicant: B McTaggart Solicitors for the Applicant: Ogilvie Jennings Counsel for the Respondent: B Morgan Solicitor for the Respondent: Australian Government Solicitor Dates of Hearing: 4, 5 and 6 February 2008 Date of Final Submissions 18 February 2008 Date of Judgment: 6 May 2008 SCHEDULE Year Date Blood Pressure Reading Doctor 1997 21 November 150/93 Mee 26 November 135/85 Mee 1998 30 June 180/100 Mee 3 July 160/80 Mee 1999 20 April 150/93 Mee 2000 17 April 150/100 Cooper 18 November 150/85 Mee 28 November 150/95 Cooper 2001 23 July 135/85 Mee 2002 September/October 160/110 unknown 2003 22 April 200/110 Payne 22 April 190/105 Mee 9 May 170/105 Mee 13 May 200/125 Payne 15 May 170/110 McArdle 15 May 180/110 Cooper 19 May 170/98 Mee 28 May 170/100 McArdle 2 June 150/88 Mee 10 June 170/110 Mee 10 June 170/100 Cooper 19 June 172/100 Cooper 24 July 150/85 Mee 2004 14 January 165/110 Cooper 5 February 111/70 (ambulatory) Bishop AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/603.html
Case: IW v City of Perth [1997] HCA 30 ; (1997) 191 CLR 1
Outcome: cited
Anti-discrimination legislation is to be given a "fair, large and liberal" interpretation rather than one which is "literal or technical": IW v City of Perth [1997] HCA 30 ; (1997) 191 CLR 1 at 12 per Brennan CJ and McHugh J. From 28 April 2003 Mr Gordon was an "employee" of the respondent, however conditional the terms under which he was employed. He attended at the ATO Launceston office, carried out such duties as were required of him (there is nothing to suggest the contrary) and received, or became entitled to receive, a wage or salary as long as he so attended. During the period he was at the office the respondent would have owed him the common law and statutory obligations which employers owe to their employees. The respondent would have been liable to any third parties for torts committed by Mr Gordon in the course of his employment. Withdrawing an employment offer, in circumstances where Mr Gordon had already started work, and would have continued to work but for Mr Godden telling him to leave the premises that day, was within the concept of "dismissing" in s 15(2)(c). 60 Since s 15(1) make it unlawful to discriminate against a person on the grounds of disability in "determining who should be offered employment" (par (b)) or "in the terms or conditions on which employment is offered" (par (c)), it would be strange if someone like Mr Gordon who had actually started work would be in a weaker position and would have no protection against discrimination. 61 I reject the respondent's submission that Mr Gordon "commenced his employment under false pretences". The medical evaluation form ([18]-[20] above) made it clear that the doctor was not to decide whether Mr Gordon got the job. The form was quite encouraging in holding out the prospect that, if any medical problems existed, their effect on employment could quite possibly be resolved to the satisfaction of the employee. Mr Gordon was aware that Dr Payne would talk to the ATO. Mr Gordon was not to know when this would happen. In the meantime, according to Mr Godden, Mr Gordon's commencing work was somewhat accelerated, apparently on the ATO's initiative, because the training program was about to commence.
Case: March v Stramare (E &amp; MH) Pty Ltd [1991] HCA 12 ; (1991) 171 CLR 506
Outcome: referred to
However, I do not think any amount in relation to the house purchase is properly allowable as damages by way of compensation for any loss or damage suffered because of the conduct of the respondent: s 46PO(4)(d) of the HREOC Act. There is no suggestion that the ATO was aware of, let alone encouraged, this purchase. Any loss, either by way of out of pocket expenses or loss of a chance to make a profitable investment, arose from Mr Gordon's rather precipitate decision to purchase and cannot, as a matter of commonsense, be attributed to the discriminatory conduct of the ATO: cf March v Stramare (E &amp; MH) Pty Ltd [1991] HCA 12 ; (1991) 171 CLR 506. 99 At the time of his termination Mr Gordon's ATO gross salary was $42,351. 100 Following his termination he applied for the following positions; 22 June 2003 Deloittes Tax Analyst 30 March 2004 Tasmanian Perpetual Trustees position not advised 30 March 2004 Shadforths Stockbrokers Financial Advisor Assistance/Planner 30 March 2004 Commonwealth Bank Financial Planner 30 March 2004 SMF Funds Management Office Administrator 1 April 2004 RBF Cadet, Investments 1 April 2004 RBF Superannuation Administrator
Case: Malec v J C Hutton Pty Ltd [1990] HCA 20 ; (1990) 169 CLR 638
Outcome: cited
Assessing what is likely to happen in the future, or would be likely to have happened had not something intervened, is not a matter of scientific demonstration or proof. Nor, unlike findings as to alleged past events, is it a case of all or nothing; 51 per cent probability win, 49 per cent probability lose: Malec v J C Hutton Pty Ltd [1990] HCA 20 ; (1990) 169 CLR 638 at 643. Nevertheless, the circumstances in the present case make it extremely unlikely that Mr Gordon, had it not been for the termination in May 2003, would have pursued a successful career with the ATO until retirement, let alone at the level he suggests. 107 First, without wishing to be hurtful to Mr Gordon, the inescapable fact is that, for whatever reason, he is not a high achiever. On paper his qualifications are considerable. He has an honours economics degree and an MBA from good universities. He is a qualified accountant. He has almost finished financial planning qualifications. Yet the positions he has occupied up until now could be characterised as occupying a rank and salary towards the lower end of mid-level clerical/professional jobs. Professional men or women in their mid-forties should be at or approaching their peak in terms of earnings and professional status. If they haven't got very far by this stage, things are unlikely to improve to any significant extent. 108 Secondly, in the past Mr Gordon has not displayed any particular enthusiasm for a career in taxation. He did not persist with the ATO in his earlier career (see [14] above). Perhaps more importantly, in his recent job applications, both in the public and private sectors ([100] above), only one was tax-related. The rest appear to have been for employment in the funds management industry.
Case: Purvis v New South Wales [2003] HCA 62 ; (2003) 217 CLR 92
Outcome: applied
As already mentioned, hypertension is a disability. The respondent, on the advice of Dr Payne, imputed this disability to Mr Gordon. The comparator for the purposes of s 5(1) is a hypothetical person who does not have hypertension but has Mr Gordon's qualifications and experience and is applying for the position of a GST Field Officer in the Launceston office of the ATO. There can be no doubt that such a person would have got the job and would not have had the employment offer withdrawn. By withdrawing the offer of employment the respondent has treated Mr Gordon less favourably than it would have treated such a hypothetical person. It did so because of the imputed condition of hypertension, which, it considered, made him unfit for the requirements of the particular position. The respondent thus discriminated against Mr Gordon, within the meaning of s 5(1): Purvis v New South Wales [2003] HCA 62 ; (2003) 217 CLR 92 at [213] . 57 I do not accept the respondent's argument that the offer was withdrawn, not because of Mr Gordon's hypertension, but because he failed to meet one of the pre-employment conditions, viz, that he be certified fit for the duties of the position. One cannot divorce the factual base from its legal characterisation. Even if regard is had to the three other medical conditions mentioned by Dr Payne, there would still be discrimination because they are equally "disabilities" which would not be suffered by the comparator. But viewed in a practical way, the inescapable conclusion from the evidence is that the real and operative reason for withdrawing the offer was Mr Gordon's imputed hypertension. 58 The respondent contended that it did not dismiss Mr Gordon, rather that it withdrew a conditional offer of employment when the condition was not satisfied.
Case: Waters v Public Transport Corporation [1991] HCA 49 ; (1991) 173 CLR 349
Outcome: cited
I conclude therefore that Mr Gordon has made out a prima facie case of discrimination. Before passing to the s 15(4) defence I should note that the Act does not require an intention or motive to discriminate; cf Waters v Public Transport Corporation [1991] HCA 49 ; (1991) 173 CLR 349 at 359 per Mason CJ and Gaudron J, with whom Deane J at 382 agreed, a case under comparable Victorian legislation. There is nothing to suggest that Dr Payne, or Mr Godden and the other ATO officers, acted otherwise than in good faith.