mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Retail Employees Superannuation Pty Ltd v Crocker (2001) 48 ATR 359
Outcome: cited
Under the SCT Act , the question for the Tribunal was whether, from the Trustee's perspective, the decisions of the Trustee and the Insurer were "fair and reasonable in the circumstances" in their operation in relation to Mr Samaras having regard to the governing rules and terms of the Deed: ss 37(5) and (6) of the SCT Act ; Cameron v Board of Trustees of the State Public Sector Superannuation Scheme [2003] FCAFC 214 ; (2003) 130 FCR 122 at [38] - [43] ; National Mutual Life Association of Australia Ltd v Campbell [2000] FCA 852 ; (2000) 99 FCR 562 at [32] to [37]; Retail Employees Superannuation Pty Ltd v Crocker (2001) 48 ATR 359 at [31] and Marks v CSS Board of Trustees [2005] FCA 797.
Case: Ashmere Cove Pty Ltd v Knightsbridge Managed Funds Ltd (in liq) [2007] FCA 1428
Outcome: referred to
Employers Reinsurance Corporation v Ashmere Cove Pty Ltd [2008] FCAFC 28 ; (2008) 166 FCR 398 a Full Court considered a claim by investors involved with an insolvent investment firm for a declaration that the firm's insurer was liable to it under the terms of a professional indemnity policy. No claim was made by the liquidator of the firm against the insurer. At first instance, French J had utilised O 6 r 2 to join the insurer: Ashmere Cove Pty Ltd v Knightsbridge Managed Funds Ltd (in lid) [2007] FCA 1428. On appeal the insurer argued that there was no "matter" in the requisite constitutional sense since the liquidator was not making the claim. Heerey, Sackville and Siopis JJ rejected this submission (at 411-412 [61]-[62]) and held (at 414 [73]-[74]) that the seeking of such a declaration and consequent joinder pursuant to O 6 r 2 was an appropriate exercise of discretion by the primary judge. It seems to me that similar reasoning applies in this case. The making of a declaration that Allianz is liable to Bentley Barton and Mr Taylor under the terms of the Policy and the presence of Allianz in any such suit will, effectively, resolve in the most efficient fashion, all of the issues between the parties. Accordingly, Allianz should be joined pursuant to O 6 r 2.
Case: Darlington Futures Ltd v Delco Australia Pty Ltd [1986] HCA 82 ; (1986) 161 CLR 500
Outcome: applied
applicants, however, also submitted that the exclusion should be construed as applying only to authorised investments. This submission should be accepted. In Nissho Iwai Australia Ltd v Malaysian International Shipping Corporation, Berhad [1989] HCA 32 ; (1989) 167 CLR 219 at 227 a unanimous High Court adopted a passage from Darlington Futures Ltd v Delco Australia Pty Ltd [1986] HCA 82 ; (1986) 161 CLR 500 at 510 in these terms: ... the interpretation of an exclusion clause is to be determined by construing the clause according to its natural and ordinary meaning, read in the light of the contract as a whole, thereby giving due weight to the context in which the clause appears including the nature and object of the contract, and, where appropriate, construing the clause contra proferentem in case of ambiguity. The operation of that principle in the context of unauthorised investments was itself considered by the High Court in Darlington Futures Pty Ltd v Delco Australia Pty Ltd . In that case, a broker dealing on the commodity futures market entered into a written agreement with a client under which the broker was instructed to engage on behalf of the client in a form of commodity futures dealings known as tax straddles. An amount of trading occurred contrary to the client's instructions and in consequence heavy losses were sustained. Clause 6 of the written agreement between the broker and the client contained various acknowledgements about the exigencies of the market and concluded with the sentence: The Client finally acknowledges that the Agent will not be responsible for any loss arising in any way out of any trading activity undertaken on behalf of the Client whether pursuant to this Agreement or not, and that the Agent shall not be liable to account to the Client for any profit made by the Agent in any of the circumstances set out in clause 9 whether or not such circumstances result in a loss to the Client. Having made the statement set out above, the Court then turned to the question of how that sentence was to be construed. The Court held (at 511 per Mason, Wilson, Brennan, Deane and Dawson JJ): Turning now to cl. 6 of the contract between the appellant and the respondent, the question is whether the relevant losses arose "in any way out of any trading activity undertaken on behalf of the Client whether pursuant to this agreement or not". Read in context these words plainly refer to trading activity undertaken by the appellant for the respondent with the respondent's authority, whether pursuant to the agreement or not. It can scarcely be supposed that the parties intended to exclude liability on the part of the appellant for losses arising from trading activity in which it presumed to engage on behalf of the respondent when the appellant had no authority so to do.
Case: Employers Reinsurance Corporation v Ashmere Cove Pty Ltd [2008] FCAFC 28 ; (2008) 166 FCR 398
Outcome: followed
Employers Reinsurance Corporation v Ashmere Cove Pty Ltd [2008] FCAFC 28 ; (2008) 166 FCR 398 a Full Court considered a claim by investors involved with an insolvent investment firm for a declaration that the firm's insurer was liable to it under the terms of a professional indemnity policy. No claim was made by the liquidator of the firm against the insurer. At first instance, French J had utilised O 6 r 2 to join the insurer: Ashmere Cove Pty Ltd v Knightsbridge Managed Funds Ltd (in lid) [2007] FCA 1428. On appeal the insurer argued that there was no "matter" in the requisite constitutional sense since the liquidator was not making the claim. Heerey, Sackville and Siopis JJ rejected this submission (at 411-412 [61]-[62]) and held (at 414 [73]-[74]) that the seeking of such a declaration and consequent joinder pursuant to O 6 r 2 was an appropriate exercise of discretion by the primary judge. It seems to me that similar reasoning applies in this case. The making of a declaration that Allianz is liable to Bentley Barton and Mr Taylor under the terms of the Policy and the presence of Allianz in any such suit will, effectively, resolve in the most efficient fashion, all of the issues between the parties. Accordingly, Allianz should be joined pursuant to O 6 r 2.
Case: Nissho Iwai Australia Ltd v Malaysian International Shipping Corporation, Berhad [1989] HCA 32 ; (1989) 167 CLR 219
Outcome: considered
applicants, however, also submitted that the exclusion should be construed as applying only to authorised investments. This submission should be accepted. In Nissho Iwai Australia Ltd v Malaysian International Shipping Corporation, Berhad [1989] HCA 32 ; (1989) 167 CLR 219 at 227 a unanimous High Court adopted a passage from Darlington Futures Ltd v Delco Australia Pty Ltd [1986] HCA 82 ; (1986) 161 CLR 500 at 510 in these terms: ... the interpretation of an exclusion clause is to be determined by construing the clause according to its natural and ordinary meaning, read in the light of the contract as a whole, thereby giving due weight to the context in which the clause appears including the nature and object of the contract, and, where appropriate, construing the clause contra proferentem in case of ambiguity.
Case: Ogilvie-Grant v East (1983) 7 ACLR 669
Outcome: considered
circumstances in which it would be appropriate to grant leave are not closed. In Ogilvie-Grant v East (1983) 7 ACLR 669 at 672 the following observation was made by McPherson J (with whom Campbell CJ and Sheahan J agreed): It, of course, follows that it is quite impossible to state in an exhaustive manner all the circumstances in which leave to proceed may be appropriate, but in the past they have been said to include factors such as the amount and seriousness of the claim, the degree of complexity of the legal and factual issues involved, and the stage to which the proceedings, if already commenced, may have progressed. Here the proceeding is of considerable complexity. To require those claims to be dealt with by the liquidator on a proof of debt with the almost inevitable consequence of an appeal to a court in relation to any rejection of that proof of debt seems to me to be an inefficient way to proceed. More is this so where I have concluded that there is a potentially an insurance policy involved. Although the proceeding has not progressed far, it seems to me in all the circumstances that the complexity and seriousness of the proceeding, together with the existence of a potential insurance policy, justify a grant of leave pursuant to s 471B. Leave to proceed under the Bankruptcy Act
Case: Re Rose; Ex parte Devaban Pty Ltd (unreported, Hill J, 7 October 1994)
Outcome: applied
turn then to the question of whether leave should be granted to the Applicants to proceed against Mr Taylor pursuant to s 58(3)(b) of the Bankruptcy Act . In Re Rose; Ex parte Devaban Pty Ltd [1994] FCA 1082 (unreported, 7 October 1994, Hill J) it was held (at 3-4): On the other hand, the Act does contemplate that the Court will, in an appropriate case, grant leave. In that respect a case would be an appropriate case where the proceedings proposed against the bankrupt are proceedings to which other parties are involved and for the proper conduct of which it may be necessary for the bankrupt to become a party.
Case: Re Sharp; Ex parte Tietyens Investments Pty Ltd (in liq) [1998] FCA 1367
Outcome: cited
principle was applied by Weinberg J in Re Sharp; Ex parte Tietyens Investments Pty Ltd (in liq) [1998] FCA 1367 at 6 and also by Burchett J in Sturdy Components Pty Ltd v Trustee of the Bankrupt Estate of Sturt [2000] FCA 884 at [3] - [4] .
Case: Sturdy Components Pty Ltd v Trustee of the Bankrupt Estate of Sturt [2000] FCA 884
Outcome: cited
principle was applied by Weinberg J in Re Sharp; Ex parte Tietyens Investments Pty Ltd (in liq) [1998] FCA 1367 at 6 and also by Burchett J in Sturdy Components Pty Ltd v Trustee of the Bankrupt Estate of Sturt [2000] FCA 884 at [3] - [4] .
Case: Australian Broadcasting Corporation v Lenah Game Meats Pty Limited [2001] HCA 63 ; (2001) 208 CLR 199
Outcome: cited
is important to remember that a right to interlocutory relief depends upon the moving party being able to establish that there is a right to final relief. I consider that if the meeting on 19 August 2009 was ineffective to remove Mr Stawiczny as Managing Director of the Company and from participation in the management of the Company and that the resolution to remove him as a director of the Company proposed to be put to the meeting of members of the Company on 10 September 2009 is not a resolution that can properly be put having regard to the terms of the Shareholders' Agreement, then those matters give rise to an entitlement to relief under s 233 of the Act: cf Australian Broadcasting Corporation v Lenah Game Meats Pty Limited [2001] HCA 63 ; (2001) 208 CLR 199 at 218. Mr Anderson gave notice of the meeting of directors on the morning of 18 August 2009. His notice stated that the meeting was being called for 8.00am on the following day and that "if a quorum is present at that time, the meeting will proceed whether or not you are there. This is consistent with the process as per our Company Constitution ". Later that day Mr Stawiczny sent an email to Mr Anderson in which he said that it was not convenient for him to meet at that time. The meeting did not occur at 8.00am on 19 August 2009 as Mr Stawiczny was not present. It will be recalled that cl 4(c) of the Shareholders' Agreement provided that a quorum for meetings of directors was all directors. As I have noted earlier, what occurred on 19 August 2009 is controversial. There is no doubt that at some time after 11.00am-11.30am the three directors were present in the one room and that there was a dialogue about issues which particularly concerned Mr Anderson and Mr Dunford. Mr Anderson's evidence as to what occurred is disputed by Mr Stawiczny. I have referred earlier to the evidence of Mr Stawiczny and Mr Anderson.
Case: Minister for Immigration and Multicultural Affairs v Respondents S152/2003 [2004] HCA 18 ; (2004) 222 CLR 1
Outcome: applied
has been systematic, recent authoritative analysis of when conduct giving rise to a well founded fear of serious harm at the hands of a non-State actor may constitute persecution because of the unwillingness or inability of the State (or State agents) to discharge its obligation to protect its citizens: see Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1 ; Minister for Immigration and Multicultural Affairs v Khawar [2002] HCA 14 ; (2002) 210 CLR 1 ; Horvath v Secretary of State for the Home Department [2000] UKHL 37 ; [2001] 1 AC 489 ; see also SZAIX v Minister for Immigration [2006] FCA 3 ; (2006) 150 FCR 448. I need only note the following for present purposes. It is drawn from the above authorities. (ii) Those standards cannot provide an "absolute guarantee" of protection: Hovath , at 510; the measures taken to protect the lives and safety of citizens must be "reasonable": Respondents S152/2003 ; but they cannot be expected to protect against "individual and random" incidents of harm: at [119]. (iii) There must be a reasonable willingness and ability by the State and its agents to invoke those laws and mechanisms against the perpetrators of violence: Respondents S152/2003 at [21]; Hovatt , at 511; and this may necessitate examining how State agents act at a "local level" regardless of the State's "leaders' good intention": see SZAIX at [37]. (iv) If the State or its agents condone, approve, tolerate: Khawar , [31]; or are indifferent to: Respondents S152/2003 at [119]; the criminal conduct concerned, or are unwilling or unable to afford protection: Horvath at 510-511; Khawar , at [29] ... then the requirement that the persecution be by reason of one of the Convention grounds may be satisfied by the motivation of either the criminals or the state [or its agents]: Khawar, at [31]. Having regard to what was said by members of the High Court in Khawar and in Respondents S152/2003 the Tribunal perceived its task to be that (Reasons [85]): I am required to consider whether the applicant has shown State Tolerance or condonation of domestic violence in Vanuatu. Further to that, or as part of that analysis, I am required to consider whether Vanuatu provides its citizens, or the members of the particular social group more specifically, with a reasonable level of protection from persecutory conduct. In assessing the level of protection offered, and assessing whether it is reasonable, I am required to assess that in accordance with international standards.
Case: Horvath v Secretary of State for the Home Department [2001] 1 AC 489
Outcome: applied
has been systematic, recent authoritative analysis of when conduct giving rise to a well founded fear of serious harm at the hands of a non-State actor may constitute persecution because of the unwillingness or inability of the State (or State agents) to discharge its obligation to protect its citizens: see Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1 ; Minister for Immigration and Multicultural Affairs v Khawar [2002] HCA 14 ; (2002) 210 CLR 1 ; Horvath v Secretary of State for the Home Department [2000] UKHL 37 ; [2001] 1 AC 489 ; see also SZAIX v Minister for Immigration [2006] FCA 3 ; (2006) 150 FCR 448. I need only note the following for present purposes. It is drawn from the above authorities. (i) It is the obligation of a State to provide an adequate or reasonable armoury of laws and other mechanisms capable of providing international standards of protection: Respondent S152/2003 at [27]; Horvath , at 510; against the perpetration of violence on its citizens: Respondent S152/2003 , at [26]. (iv) If the State or its agents condone, approve, tolerate: Khawar , [31]; or are indifferent to: Respondents S152/2003 at [119]; the criminal conduct concerned, or are unwilling or unable to afford protection: Horvath at 510-511; Khawar , at [29] ... then the requirement that the persecution be by reason of one of the Convention grounds may be satisfied by the motivation of either the criminals or the state [or its agents]: Khawar, at [31]. I make the above comments, not because I consider that, as a matter of merits review, a different conclusion would have been preferable. Merits review, as is well accepted, is no part of the Federal Magistrates Court function in judicial review proceedings under s 476 of the Migration Act 1958 . Rather, when one has regard (i) to the material before the Tribunal; (ii) to the issues raised by the appellant's case as to whether the police would be unwilling or unable to provide her with effective protection; and (iii) to the content and emphases of the Tribunal's reasons, I consider the only proper inference to be drawn: cf Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26 ; (1949) 78 CLR 353 at 360; is that, howsoever the Tribunal may have formulated its task, it did not appreciate the actual nature of, nor did it undertake, the legal inquiry it was required to undertake as to whether the protective measures which it considered were available in Vanuatu, were ones the State's agents were willing or able to utilise in providing protection. The reasons do not suggest any adequate or reasonable consideration of that issue at all and that was the issue before it on the appellant's case.
Case: SZAIX v Minister for Immigration (2006) 150 FCR 448
Outcome: cited
has been systematic, recent authoritative analysis of when conduct giving rise to a well founded fear of serious harm at the hands of a non-State actor may constitute persecution because of the unwillingness or inability of the State (or State agents) to discharge its obligation to protect its citizens: see Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1 ; Minister for Immigration and Multicultural Affairs v Khawar [2002] HCA 14 ; (2002) 210 CLR 1 ; Horvath v Secretary of State for the Home Department [2000] UKHL 37 ; [2001] 1 AC 489 ; see also SZAIX v Minister for Immigration [2006] FCA 3 ; (2006) 150 FCR 448. I need only note the following for present purposes. It is drawn from the above authorities. (iii) There must be a reasonable willingness and ability by the State and its agents to invoke those laws and mechanisms against the perpetrators of violence: Respondents S152/2003 at [21]; Hovatt , at 511; and this may necessitate examining how State agents act at a "local level" regardless of the State's "leaders' good intention": see SZAIX at [37]. The issue in this appeal, as it was in Khawar and SZAIX , relates to proposition (iv) above.
Case: Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353
Outcome: cited
make the above comments, not because I consider that, as a matter of merits review, a different conclusion would have been preferable. Merits review, as is well accepted, is no part of the Federal Magistrates Court function in judicial review proceedings under s 476 of the Migration Act 1958 . Rather, when one has regard (i) to the material before the Tribunal; (ii) to the issues raised by the appellant's case as to whether the police would be unwilling or unable to provide her with effective protection; and (iii) to the content and emphases of the Tribunal's reasons, I consider the only proper inference to be drawn: cf Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26 ; (1949) 78 CLR 353 at 360; is that, howsoever the Tribunal may have formulated its task, it did not appreciate the actual nature of, nor did it undertake, the legal inquiry it was required to undertake as to whether the protective measures which it considered were available in Vanuatu, were ones the State's agents were willing or able to utilise in providing protection. The reasons do not suggest any adequate or reasonable consideration of that issue at all and that was the issue before it on the appellant's case.
Case: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
Outcome: cited
am in the circumstances satisfied that the Tribunal's failure properly to consider whether the police were unwilling or unable to afford State protection constituted jurisdictional error: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 at [82] . I likewise am satisfied that the decision of the Federal Magistrate disclosed an appellable error. Accordingly, I will order that: 1. The appeal be allowed. 2. The orders of Lindsay FM made on 3 March 2009 be set aside and in lieu thereof: 2.1 An order in the nature of certiorari to quash the decision of the Second Respondent signed on 4 October 2008 and sent on 15 October 2008 in RRT Case Number 0802686. 2.2 An order in the nature of mandamus requiring the Second Respondent to review the decision made by a delegate of the Minister for Immigration and Multicultural Affairs on 17 April 2008 according to law. 2.3 An order that the First Respondent pay the Appellant's costs of the application. The First Respondent pay the Appellant's costs of the appeal. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn. Associate: Dated: 19 August 2009 Counsel for the Appellant: Mr S Ower Solicitor for the Appellant: Bourne Lawyers Counsel for the First and Second Respondent: Mr K Tredrea Solicitor for the First and Second Respondent: Australian Government Solicitor Date of Hearing: 13 August 2009 Date of Judgment: 19 August 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/912.html
Case: Thomas v State of South Australia [2004] FCA 951 
Outcome: cited
In 2003 Mr Reid sought, unsuccessfully, to have that native title claim struck out for want of authorisation: see Thomas v State of South Australia [2004] FCA 951. 6 After filing the application on 24 May 2007, Mr Reid purported to file two further amended applications, one on 14 June 2007, the other on 9 July 2007. I have had regard to these for the purposes of the State's motion and, formally, I have proceeded as if leave had been given to file and serve that of 14 June 2007. The State's submissions proceeded on that basis. I took this course because I would in any event have had to strike out the original application because, according to the express terms used in Schedule of O of that application, Mr Reid was, as a member of another claim group, "specifically excluded from this application's claim group". 7 The Schedule A claim group is made up of a two page list of 103 named persons followed by the reference to "other living Kokatha persons as described in Attachment A". Mr Reid claims that access to this Attachment is "restricted". The Attachment provided greater detail about Mr Reid and the named persons and then continues: "4. The Claim group also has the capacity to contain descendents of prior attendees and participants in KPC meetings and activities , (if they are not already in the claim group) and if they are have the necessary ancestry relating to inheritance (i.e. if they are valid Kokatha). Such live persons or live descendents will be included in the claim group in due course (at the discretion of KPC Elders and Advisors). 5. The Claim Group also has the capacity to contain live descendents of prior Custodians over parts of the Kokatha Nation Territory. Such persons will be included in the claim group in due course (at the discretion of KPC Elders and Advisors). 6. The Claim Group also has the capacity to contain adopted persons from other tribes (and their Kokatha descendents) using criteria such as whether such people acknowledge and are schooled in Kokatha law and custom, participate in Kokatha activities, or have valid interests in part of Kokatha Nation territory. (The exact criteria that [sic] used will be up to the Elders to decide)." (Original emphasis)