mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Thomson Australian Holdings Pty Ltd v Trade Practices Commission [1981] HCA 48 ; (1980-1981) 148 CLR 150
Outcome: applied
that a question arises as to whether or not undertakings should be accepted, reference should also be made to the guidance offered by Gibbs CJ, Stephen, Mason and Wilson JJ in their joint judgment in Thomson Australian Holdings Pty Ltd v Trade Practices Commission [1981] HCA 48 ; (1980-1981) 148 CLR 150 at 164-165: An undertaking to the court is given in lieu of an injunction and, if broken, is treated as the equivalent of an order for the purpose of enforcement; it may therefore be enforced in the same manner as an injunction Milburn v Newton Colliery Ltd; London and Birmingham Railway Co v Grand Junction Canal Co; In re National Federated Electrical Association's Agreement; Biba Ltd v Stratford Investments Ltd. As an undertaking is given in lieu of an injunction and is enforceable in like manner, the principles which govern the grant of an injunction by a court must guide it in deciding whether it should accept an undertaking. Limitations which affect the court's jurisdiction or power to grant a final injunction must be observed in the acceptance of an undertaking when it is offered as a substitute for a final injunction. The court cannot escape such limitations by the expedient of accepting an undertaking in lieu of an injunction. The court cannot put itself in the position of enforcing conduct which it has no capacity to command or compel. No doubt the Federal Court has power to accept an undertaking at an interlocutory stage when the undertaking is reasonably related to the orderly procedure of the Court or to the subject matter of the litigation, ... even though it is not in a form which falls within s 80. But, ... this does not justify the conclusion that the Court has power to accept an undertaking by way of final disposition of the case when the Court lacks power to make a final order in that form and the effect of the undertaking is to restrain conduct which the Court has no power to restrain. In general the court must, in deciding whether it will accept from a defendant an undertaking to which the plaintiff takes no exception, be guided by the principles which apply to the making of a consent injunction ... [footnotes omitted]
Case: Sir Moses Montefiore Jewish Home v Howell and Co (No 7) Pty Ltd [1984] 2 NSWLR 406
Outcome: referred to
The Elliotts had no power, so their counsel submitted, to terminate the trust, which would end only with the death of the survivor. This was not, so their counsel said, a case like Sir Moses Montefiore Jewish Home v Howell and Co (No 7) Pty Ltd [1984] 2 NSWLR 406 (" Montefiore "), which extended the rule in Saunders v Vautier [1841] EngR 765 ; (1841) 4 Beav 115 ; 41 ER 482 (" Saunders v Vautier ") to a discretionary trust, because the objects of the trust established under clause 5(b) of the will were not closed and extended to the unborn children of the Elliotts (if any) and the descendants of the Elliotts' children, including Susan Elliott's descendants (if any). 38 Thus, this case is different from Montefiore , where Kearney J held, by reference to the rule in Saunders v Vautier , that, where the class of objects of a discretionary trust was closed and the income was required to be paid each year to one or more of the objects, the objects acting together could terminate the discretionary trust: see Montefiore at 410-11. Whilst his Honour considered it "odd" that "all the objects should collectively enjoy a beneficial ownership entitling them to invoke the rule in Saunders v Vautier which is different in character from the aggregate of their individual interests", he held nonetheless that such an entitlement existed: see Montefiore at 411. In contrast to this, the terms of the trust under clause 5(b) do not require the trustees to pay the trust income at any particular interval or at all to one or other of the objects, but, subject to the directions already noted, would permit the trustees to accumulate income as they saw fit and, as already stated, the class of discretionary beneficiaries is not closed: compare JD Heydon and MJ Leeming, Jacobs' Law of Trusts in Australia (LexisNexis Butterworths, Australia, 2006) at [2315].
Case: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 29 ; (1998) 194 CLR 355
Outcome: cited
Counsel for the Secretary submitted that "a beneficial interest" would exist for the purposes of par 1207V(2)(d) where there was "the entitlement ... to enforce the due administration of the trust, and ... the capacity to receive property or interest". On this submission, the position at general law was very largely immaterial. Relying on Secretary, Department of Family and Community Services v Geeves [2004] FCAFC 166 ; (2004) 136 FCR 134 (" Geeves ") and Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 29 ; (1998) 194 CLR 355 at 368 and 381, the Secretary argued that a broad construction of par 1207V(2)(d) was consistent with the purpose of Pt 3.18, which was to capture the kind of arrangements made by the testamentary trust in question here. The Secretary maintained that par 1207V(2)(d) was specifically intended to capture discretionary trust entitlements; and that, if I were to accept the Elliotts' submissions, then par 1207V(2)(d) would not operate to capture discretionary trust beneficiaries as intended. The Secretary emphasised the Elliotts' practical capacity to have access to the income and assets of the trust created under clause 5(b) of the will and that they benefited from regular payments out of trust funds. The Secretary noted that all possible discretionary beneficiaries were necessarily "associates" and argued that their interests could be aggregated, with the result that the Elliotts should be considered to pass the control test via par 1207V(2)(d).
Case: CPT Custodian Pty Ltd v Commissioner of State Revenue [2005] HCA 53 ; (2005) 224 CLR 98
Outcome: referred to
The Social Security Act does not define "beneficial interests". The expression "beneficial interest" has no precise received meaning: compare RP Meagher, JD Heydon, and MJ Leeming, Meagher, Gummow and Lehane's Equity Doctrines and Remedies (Butterworths, LexisNexis, 4th ed, 2002) at [4-040] and R Speed, "Beneficial Ownership" (1997) 26 ATR Rev 34 at 50. Indeed, the word "interest" is itself "capable of a very wide and general meaning": see Gartside at 617 per Lord Wilberforce; Commissioner of Stamp Duties (Qld) v Livingston (1964) 112 CLR 12 (" Livingston ") at 22 per Viscount Radcliffe; and CPT Custodian Pty Ltd v Commissioner of State Revenue [2005] HCA 53 ; (2005) 224 CLR 98 at 114 per Gleeson CJ, McHugh, Gummow, Callinan and Heydon JJ. The expression "beneficial interests" therefore falls to be interpreted principally by reference to the statutory context in which it is used, and any guidance that the general law can provide. The Court may also have regard to extrinsic materials such as the second reading speech or the explanatory memorandum accompanying the Bill to confirm that the ordinary meaning of the expression is applicable or to assist in resolving any ambiguity: see Acts Interpretation Act 1901 (Cth), s 15AB.
Case: Re Nelson [1928] Ch 920
Outcome: referred to
For example, as French J records, the Court of Appeal in Re Nelson [1928] Ch 920 at 921-2 (" Re Nelson ") held that the three beneficiaries of an exhaustive discretionary trust with a closed class were able to mortgage their share and interest under a will since they were "of age and sui juris" and concurred "in assigning by way of mortgage their interest". In that case, Swinfen Eady MR distinguished the earlier case of Re Coleman (1888) LR 39 Ch D 443 (" Re Coleman "), where the trustees had power to apply the income of the trust fund for the benefit of a class or any one of them to the exclusion of the others (as in the present case). In Re Coleman, one of the beneficiaries assigned his share and claimed that an appropriate portion should be paid to his assignee. In Re Nelson at 921, the Master of the Rolls said (in relation to the issue in Re Coleman ): The answer to that was that he did not take an equal fourth or any other share and the trustees could have applied the whole of the income to the other members of that class. That is quite a different case from the present, where all the members of the class have assigned their shares to the mortgagees. Having regard to these authorities, French J concluded in Carey (at 517) that "[w]here there is an exhaustive discretionary trust with a closed class of beneficiaries, then all the beneficiaries may collectively require the trustee to transfer the fund to them or deal with the property subject to discretion as if they were the absolute owners of it". This is not, however, the position with respect to a non-exhaustive trust where the class of objects is open, as in the case of the trust created under clause 5(b) of the will.
Case: Re Coleman (1888) LR 39 Ch D 443
Outcome: referred to
For example, as French J records, the Court of Appeal in Re Nelson [1928] Ch 920 at 921-2 (" Re Nelson ") held that the three beneficiaries of an exhaustive discretionary trust with a closed class were able to mortgage their share and interest under a will since they were "of age and sui juris" and concurred "in assigning by way of mortgage their interest". In that case, Swinfen Eady MR distinguished the earlier case of Re Coleman (1888) LR 39 Ch D 443 (" Re Coleman "), where the trustees had power to apply the income of the trust fund for the benefit of a class or any one of them to the exclusion of the others (as in the present case). In Re Coleman, one of the beneficiaries assigned his share and claimed that an appropriate portion should be paid to his assignee. In Re Nelson at 921, the Master of the Rolls said (in relation to the issue in Re Coleman ): The answer to that was that he did not take an equal fourth or any other share and the trustees could have applied the whole of the income to the other members of that class. That is quite a different case from the present, where all the members of the class have assigned their shares to the mortgagees. Having regard to these authorities, French J concluded in Carey (at 517) that "[w]here there is an exhaustive discretionary trust with a closed class of beneficiaries, then all the beneficiaries may collectively require the trustee to transfer the fund to them or deal with the property subject to discretion as if they were the absolute owners of it". This is not, however, the position with respect to a non-exhaustive trust where the class of objects is open, as in the case of the trust created under clause 5(b) of the will.
Case: Saunders v Vautier [1841] EngR 765 ; (1841) 4 Beav 115 ; 41 ER 482
Outcome: cited
The Elliotts had no power, so their counsel submitted, to terminate the trust, which would end only with the death of the survivor. This was not, so their counsel said, a case like Sir Moses Montefiore Jewish Home v Howell and Co (No 7) Pty Ltd [1984] 2 NSWLR 406 (" Montefiore "), which extended the rule in Saunders v Vautier [1841] EngR 765 ; (1841) 4 Beav 115 ; 41 ER 482 (" Saunders v Vautier ") to a discretionary trust, because the objects of the trust established under clause 5(b) of the will were not closed and extended to the unborn children of the Elliotts (if any) and the descendants of the Elliotts' children, including Susan Elliott's descendants (if any). 38 Thus, this case is different from Montefiore , where Kearney J held, by reference to the rule in Saunders v Vautier , that, where the class of objects of a discretionary trust was closed and the income was required to be paid each year to one or more of the objects, the objects acting together could terminate the discretionary trust: see Montefiore at 410-11. Whilst his Honour considered it "odd" that "all the objects should collectively enjoy a beneficial ownership entitling them to invoke the rule in Saunders v Vautier which is different in character from the aggregate of their individual interests", he held nonetheless that such an entitlement existed: see Montefiore at 411. In contrast to this, the terms of the trust under clause 5(b) do not require the trustees to pay the trust income at any particular interval or at all to one or other of the objects, but, subject to the directions already noted, would permit the trustees to accumulate income as they saw fit and, as already stated, the class of discretionary beneficiaries is not closed: compare JD Heydon and MJ Leeming, Jacobs' Law of Trusts in Australia (LexisNexis Butterworths, Australia, 2006) at [2315].
Case: Harradine v Secretary, Department of Social Security [1989] FCA 200 ; (1989) 25 FCR 35
Outcome: cited
As to the form of orders, subs 44(4) of the AAT Act empowers the Court to "hear and determine the appeal and make such orders as it thinks appropriate by reason of its decision". In appropriate circumstances, the court may make a decision in substitution for that under review: see, e.g., Harradine v Secretary, Department of Social Security [1989] FCA 200 ; (1989) 25 FCR 35 and Secretary, Department of Community Services and Health v Theologidis [1991] FCA 628 ; (1991) 33 FCR 186. Pursuant to subs 44(5) the power extends to the making of an order affirming or setting aside the decision of the Tribunal and an order remitting the case. By subs 43(1), the Tribunal itself is empowered to make a decision affirming, varying or setting aside the decision under review and, in the latter event, making a decision in substitution or remitting the case for reconsideration.
Case: Comcare v A'Hearn (1993) 45 FCR 441
Outcome: cited
The discretion of the Court conferred by the words 'or within such further time as the court concerned allows' appearing in s 46PO(2) HREOC Act is similar to the discretion given to the Court in s 11(1) Administrative Decisions (Judicial Review) Act 1977 (Cth) (' ADJR Act '). Principles applicable to the exercise of the discretion under s 46PO(2) were described by McInnis FM in Phillips v Australian Girls Choir [2001] FMCA 109 , based in turn on principles formulated by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348 in relation to s11 ADJR Act . These considerations articulated in Phillips have been applied in a number of Federal Court decisions including Pham , Ingram-Nader v Brinks Australia Pty Limited [2005] FCA 1541 (Jacobsen J) and Ingram-Nader v Brinks Australia Pty Limited [2006] FCA 624 (Cowdroy J), and are relevant in the case before me. The principles listed by McInnis FM are as follows: 1. There is no onus of proof upon an applicant for extension of time though an application has to be made. Special circumstances need not be shown, but the court will not grant the application unless positively satisfied it is proper to do so. The 'prescribed period' of 28 days is not to be ignored ( Ralkon v Aboriginal Development Commission (1982) 43 ALR 535 at 550). 2. It is a prima facie rule that the proceedings commenced outside the prescribed period will not be entertained ( Lucic v Nolan (1982) 45 ALR 411 at 416). It is not a precondition for success in an application for extension of time that an acceptable explanation for delay must be given. It is to be expected that such an explanation will normally be given as a relevant matter to be considered, even though there is no rule that such an explanation is an essential precondition ( Comcare v A'Hearn (1993) 45 FCR 441 and Dix v Client Compensation Tribunal (1993) 1 VR 297 at 302). 3. Action taken by the applicant other than by making an application to the court is relevant in assessing the adequacy of the explanation for the delay. It is relevant to consider whether the applicant has rested on his rights and whether the respondent was entitled to regard the claim as being finalised (see Doyle v Chief of Staff (1982) 42 ALR 283 at 287). 4. Any prejudice to the respondent, including any prejudice in defending the proceeding occasioned by the delay, is a material factor militating against the grant of an extension (see Doyle at 287). 5. The mere absence of prejudice is not enough to justify the grant of an extension (see Lucic at 416). 6. The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted (see Lucic at 417). 7. Considerations of fairness as between the applicant and other persons otherwise in a like position are relevant to the manner of exercise of the court's discretion (see Wedesweiller v Cole (1983) 47 ALR 528).
Case: Dix v Client Compensation Tribunal (1993) 1 VR 297
Outcome: cited
The discretion of the Court conferred by the words 'or within such further time as the court concerned allows' appearing in s 46PO(2) HREOC Act is similar to the discretion given to the Court in s 11(1) Administrative Decisions (Judicial Review) Act 1977 (Cth) (' ADJR Act '). Principles applicable to the exercise of the discretion under s 46PO(2) were described by McInnis FM in Phillips v Australian Girls Choir [2001] FMCA 109 , based in turn on principles formulated by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348 in relation to s11 ADJR Act . These considerations articulated in Phillips have been applied in a number of Federal Court decisions including Pham , Ingram-Nader v Brinks Australia Pty Limited [2005] FCA 1541 (Jacobsen J) and Ingram-Nader v Brinks Australia Pty Limited [2006] FCA 624 (Cowdroy J), and are relevant in the case before me. The principles listed by McInnis FM are as follows: 1. There is no onus of proof upon an applicant for extension of time though an application has to be made. Special circumstances need not be shown, but the court will not grant the application unless positively satisfied it is proper to do so. The 'prescribed period' of 28 days is not to be ignored ( Ralkon v Aboriginal Development Commission (1982) 43 ALR 535 at 550). 2. It is a prima facie rule that the proceedings commenced outside the prescribed period will not be entertained ( Lucic v Nolan (1982) 45 ALR 411 at 416). It is not a precondition for success in an application for extension of time that an acceptable explanation for delay must be given. It is to be expected that such an explanation will normally be given as a relevant matter to be considered, even though there is no rule that such an explanation is an essential precondition ( Comcare v A'Hearn (1993) 45 FCR 441 and Dix v Client Compensation Tribunal (1993) 1 VR 297 at 302). 3. Action taken by the applicant other than by making an application to the court is relevant in assessing the adequacy of the explanation for the delay. It is relevant to consider whether the applicant has rested on his rights and whether the respondent was entitled to regard the claim as being finalised (see Doyle v Chief of Staff (1982) 42 ALR 283 at 287). 4. Any prejudice to the respondent, including any prejudice in defending the proceeding occasioned by the delay, is a material factor militating against the grant of an extension (see Doyle at 287). 5. The mere absence of prejudice is not enough to justify the grant of an extension (see Lucic at 416). 6. The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted (see Lucic at 417). 7. Considerations of fairness as between the applicant and other persons otherwise in a like position are relevant to the manner of exercise of the court's discretion (see Wedesweiller v Cole (1983) 47 ALR 528).
Case: Doyle v Chief of Staff (1982) 42 ALR 283
Outcome: cited
The discretion of the Court conferred by the words 'or within such further time as the court concerned allows' appearing in s 46PO(2) HREOC Act is similar to the discretion given to the Court in s 11(1) Administrative Decisions (Judicial Review) Act 1977 (Cth) (' ADJR Act '). Principles applicable to the exercise of the discretion under s 46PO(2) were described by McInnis FM in Phillips v Australian Girls Choir [2001] FMCA 109 , based in turn on principles formulated by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348 in relation to s11 ADJR Act . These considerations articulated in Phillips have been applied in a number of Federal Court decisions including Pham , Ingram-Nader v Brinks Australia Pty Limited [2005] FCA 1541 (Jacobsen J) and Ingram-Nader v Brinks Australia Pty Limited [2006] FCA 624 (Cowdroy J), and are relevant in the case before me. The principles listed by McInnis FM are as follows: 1. There is no onus of proof upon an applicant for extension of time though an application has to be made. Special circumstances need not be shown, but the court will not grant the application unless positively satisfied it is proper to do so. The 'prescribed period' of 28 days is not to be ignored ( Ralkon v Aboriginal Development Commission (1982) 43 ALR 535 at 550). 2. It is a prima facie rule that the proceedings commenced outside the prescribed period will not be entertained ( Lucic v Nolan (1982) 45 ALR 411 at 416). It is not a precondition for success in an application for extension of time that an acceptable explanation for delay must be given. It is to be expected that such an explanation will normally be given as a relevant matter to be considered, even though there is no rule that such an explanation is an essential precondition ( Comcare v A'Hearn (1993) 45 FCR 441 and Dix v Client Compensation Tribunal (1993) 1 VR 297 at 302). 3. Action taken by the applicant other than by making an application to the court is relevant in assessing the adequacy of the explanation for the delay. It is relevant to consider whether the applicant has rested on his rights and whether the respondent was entitled to regard the claim as being finalised (see Doyle v Chief of Staff (1982) 42 ALR 283 at 287). 4. Any prejudice to the respondent, including any prejudice in defending the proceeding occasioned by the delay, is a material factor militating against the grant of an extension (see Doyle at 287). 5. The mere absence of prejudice is not enough to justify the grant of an extension (see Lucic at 416). 6. The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted (see Lucic at 417). 7. Considerations of fairness as between the applicant and other persons otherwise in a like position are relevant to the manner of exercise of the court's discretion (see Wedesweiller v Cole (1983) 47 ALR 528).