mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Tyco Australia Pty Ltd v Leighton Contractors Pty Ltd [2005] FCAFC 115 ; (2005) 142 FCR 428 
Outcome: cited
notice to produce. The provision in the Federal Court Rules in relation to notices to produce is O 33 r 12. That rule provides: (1) Where a party to any proceedings serves on another party notice, in accordance with Form 45, requiring the party served to produce at any trial or hearing in the proceedings, or before any Judge, officer, examiner or other person having authority to take evidence in the proceedings any document or thing for the purpose of evidence and the document or thing is in the possession, custody or power of the party served, the party served shall, unless the Court otherwise orders, produce the document or thing in accordance with the notice, without the need for any subpoena for production. (2) Where the document or thing required to be produced in accordance with subrule (1) is not produced, the party serving the notice may lead secondary evidence of the contents or nature of the document or thing. (3) Subrule (2) does not affect the power of the Court to order costs against a party who fails to comply with a notice under subrule (1). Some principles have emerged in relation to notices to produce under O 33 r 12 from prior authorities. It is accepted that a notice to produce, properly issued in terms of O 33 r 12, has the same coercive effect as a subpoena. There is also authority that a notice to produce may be used even in respect of an interlocutory hearing. Though examples are to be found of such use it may perhaps require reconsideration at some stage in light of the remarks made in the Full Court in Lloyd Werft Bremerhaven GmbH v Owners of Ship "Zoya Kosmodemyanskaya" and Anor (1997) 79 FCR 71 at 93D (Bremerhaven), where the Full Court makes reference to adjectival rules to be applied at the hearing, being those appropriate to a final hearing. I proceed, though, on the basis that the desired use of a notice to produce by Mr Joyce to secure the production of particular documents for use in relation to the application to be heard on 14 December 2009 is, at least in theory, permissible under the Rules even though the application to be heard that day is not a final hearing. I note that in Tyco Australia Pty Ltd v Leighton Contractors Pty Ltd [2005] FCAFC 115 ; (2005) 142 FCR 428 , Hely J at 442, having voiced his general agreement with observations made by Hill J in relation to notices to produce, stated: Contestable issues of fact may arise in proceedings under O 15A for preliminary discovery.
Case: BP Australia Pty Ltd v Nyran Pty Ltd [2003] FCA 834
Outcome: considered
BP Australia Pty Ltd v Nyran Pty Ltd [2003] FCA 834 , Nicholson J had occasion to deal with an application for leave to serve a notice to produce. His Honour made the observation - with respect, an unsurprising observation - that O 33 r 12(1) did not require leave, but that was in the context of where production was to occur at a trial or hearing, or otherwise as provided in r 12. His Honour further observed that leave was necessary in the case before him because the notice sought the production of documents other than at a trial or hearing. Mr Joyce's counsel, upon this particular subject being drawn to his attention, applied orally for a grant of leave. Thus there are strictly two applications before the Court today. One is that brought by the Sunland parties for the setting aside of the notice to produce; the other is for a grant of leave for the production of documents on notice prior to the hearing on 14 December. The Sunland parties describe the notice to produce as "a mere fishing expedition". Their submission is that fails to meet the requisite test of relevance in relation to notices to produce. An alternative submission is made in respect of paras 2, 5 and 6 of the notice; that it is oppressive.
Case: Bailey v Beagle Management Pty Ltd [2001] FCA 60 ; (2001) 105 FCR 136
Outcome: followed
test, so far as the question of relevance is concerned, is one of adjectival relevance. Further, so far as any question of "fishing" is concerned, observations made in the Full Court in Bailey v Beagle Management Pty Ltd [2001] FCA 60 ; (2001) 105 FCR 136 at 143 are pertinent: [E]ven if the notices to produce are properly to be regarded as fishing, that concept has undergone substantial rethinking in this Court in recent years. In a number of cases it has been pointed out that O 15A r 6 (discovery before action) expressly contemplates what once might have been castigated as fishing and that it would be incongruous if the power to order discovery much less extensive in favour of a party to a proceeding properly brought in the Court than in favour of someone unable for lack of evidence to mount a case.
Case: McMahon v Gould (1982) 7 ACLR 202
Outcome: cited
14 December 2009, insofar as the application turns on matters other than jurisdiction, it is evident that Mr Joyce will seek to persuade the Court that there is unjust prejudice to him in the continuance of these proceedings of a kind described in McMahon v Gould (1982) 7 ACLR 202 at 208. One factor to which Mr Joyce proposes to point is that it is, to say the least, likely that evidence in these proceedings, insofar as it is lawfully possible under our law for the same to be disclosed, will find its way to the authorities in the Emirate. So much is accepted by the Sunland parties. The Sunland parties go rather further in terms of the particular qualities that are likely to attend them in relation to these proceedings and in respect of proceedings, both civil and criminal, in the Emirate. That this is so is evident in terms of statements made publicly by the Sunland parties, the contents of which are in evidence before me in the form of a series of Australian Stock Exchange and Media Releases issued under the hand of a Mr Harrison, the company secretary of the Sunland Group. Thus, on 20 February, the Sunland parties have disclosed openly that: Information has been provided by Sunland to the investigating authorities [I interpolate "in Dubai"] and the Sunland Group will continue to provide assistance where required.
Case: Jobbins v Capel Corporation Limited and Another [1989] FCA 538 ; (1989) 25 FCR 226
Outcome: cited
Order 11 rule 16 of the Federal Court Rules permits the Court to strike out a pleading (in whole or in part) where no reasonable cause of action is disclosed; where the pleading has a tendency to cause embarrassment or is otherwise an abuse of process such as where an action is time barred: Jobbins v Capel Corporation Limited and Another [1989] FCA 538 ; (1989) 25 FCR 226. It is an abuse of process to bring a proceeding which can clearly be seen to be foredoomed to fail: Walton v Gardiner [1993] HCA 77 ; (1993) 177 CLR 378 at 393.
Case: Walton v Gardiner [1993] HCA 77 ; (1993) 177 CLR 378
Outcome: cited
Order 11 rule 16 of the Federal Court Rules permits the Court to strike out a pleading (in whole or in part) where no reasonable cause of action is disclosed; where the pleading has a tendency to cause embarrassment or is otherwise an abuse of process such as where an action is time barred: Jobbins v Capel Corporation Limited and Another [1989] FCA 538 ; (1989) 25 FCR 226. It is an abuse of process to bring a proceeding which can clearly be seen to be foredoomed to fail: Walton v Gardiner [1993] HCA 77 ; (1993) 177 CLR 378 at 393.
Case: Wardley Australia Limited and Another v The State of Western Australia [1992] HCA 55 ; (1992) 175 CLR 514
Outcome: cited
The respondent submits that the cause of action founded upon a contravention of s 52 of the TPA is doomed to fail in that it is time barred: s 82(2) and Schedule 1, item 21 of the Trade Practices Amendment Act (No 1) 2001 (Cth). Ms Windsor seeks damages under s 82 and s 87. In the case of any cause of action which had not expired as at 26 July 2001, that action must be commenced within six years of the date upon which the cause of action accrued. Ms Windsor's case appears to be that she was induced to enter into a contract on the basis of representations made in contravention of the TPA. That contract (putting aside the question of parties) was made on 8 January 2001: see para 4 of her statement of claim. Proceedings were commenced on 28 February 2007. The cause of action accrued when the loss was ascertained (the date of entry into the contract) or was reasonably ascertainable (on 13 January 2001, when the representations were first shown to be false): see Wardley Australia Limited and Another v The State of Western Australia [1992] HCA 55 ; (1992) 175 CLR 514 as to the date of accrual of the cause of action. As such, the cause of action is time barred. 24 The respondent submits that it is not clear from the pleading whether Ms Windsor contends that the representations were rendered misleading or deceptive by reason of the fact that the contract did not contain terms consistent with the representations. Ms Windsor does not expressly plead that the representations were false, misleading or deceptive. If the case propounded by Ms Windsor is that the contract did contain terms consistent with the representations, Ms Windsor did not suffer loss by reason of the representations, but rather by reason of a breach of contract. Conversely, if Ms Windsor's case is that the contract did not contain those terms, the cause of action plainly accrued when she entered into a bargain devoid of those terms or when the representations were first shown to be false. 25 Ms Windsor submits that the respondent's arguments that her claim is doomed to fail because it is time barred is fatally flawed in that it incorrectly assumes that all causes of action occurred before 28 February 2001.
Case: Bordman v Phipps [1966] UKHL 2 ; [1967] 2 AC 46
Outcome: cited
The statutory duties owed by the first respondent are in addition to the common law and fiduciary duties which rest upon a company's officers. The first respondent owed corresponding fiduciary duties to those of his statutory duties. He also owed fiduciary duties: (a) not to prefer his own interests to those of the applicant; (b) to act with reasonable care in the discharge of his duties as a company secretary; and (c) not to place himself in a position where his duty to the applicant conflicted with his own self-interest or where there was a possibility of such a conflict arising: Bordman v Phipps [1966] UKHL 2 ; [1967] 2 AC 46 at 123; Chan v Zacharia [1984] HCA 36 ; (1984) 154 CLR 178 at 198.
Case: BP Refinery (Westernport) Pty Ltd v Shire of Hastings [1977] HCA 40 ; (1977) 180 CLR 266
Outcome: cited
However, in case I am wrong, I should address the contention. In BP Refinery (Westernport) Pty Ltd v Shire of Hastings [1977] HCA 40 ; (1977) 180 CLR 266, a majority of their Lordships in the Privy Council said in their view, for a term to be implied, the following conditions (which may overlap) must be satisfied: '(1) it must be reasonable and equitable; (2) it must be necessary to give business efficacy to the contract so that no term will be implied if the contract is effective without it; (3) it must be so obvious that "it goes without saying"; (4) it must be capable of clear expression; (5) it must not contradict any express terms of the contract.' That case was approved by the High Court in Codelfa Construction Pty Ltd v State Rail Authority of New South Wales [1982] HCA 24 ; (1982) 149 CLR 337.
Case: Broadway Motors Holdings Pty Ltd (In Liq) and the Companies (New South Wales) Code (1986) 6 NSWLR 45
Outcome: cited
A proceeding under s 1322(2) is not limited to a legal proceeding: Langton v Forsayth Mineral Exploration NL (1975) 1 ACLR 227. A proceeding extends to 'every type of procedure which might be undertaken by a company or in relation to a company's affairs': Broadway Motors Holdings Pty Ltd (In Liq) and the Companies (New South Wales) Code (1986) 6 NSWLR 45 at 55.
Case: Chan v Zacharia [1984] HCA 36 ; (1984) 154 CLR 178
Outcome: cited
The statutory duties owed by the first respondent are in addition to the common law and fiduciary duties which rest upon a company's officers. The first respondent owed corresponding fiduciary duties to those of his statutory duties. He also owed fiduciary duties: (a) not to prefer his own interests to those of the applicant; (b) to act with reasonable care in the discharge of his duties as a company secretary; and (c) not to place himself in a position where his duty to the applicant conflicted with his own self-interest or where there was a possibility of such a conflict arising: Bordman v Phipps [1966] UKHL 2 ; [1967] 2 AC 46 at 123; Chan v Zacharia [1984] HCA 36 ; (1984) 154 CLR 178 at 198.
Case: Codelfa Construction Pty Ltd v State Rail Authority of New South Wales [1982] HCA 24 ; (1982) 149 CLR 337 
Outcome: cited
However, in case I am wrong, I should address the contention. In BP Refinery (Westernport) Pty Ltd v Shire of Hastings [1977] HCA 40 ; (1977) 180 CLR 266, a majority of their Lordships in the Privy Council said in their view, for a term to be implied, the following conditions (which may overlap) must be satisfied: '(1) it must be reasonable and equitable; (2) it must be necessary to give business efficacy to the contract so that no term will be implied if the contract is effective without it; (3) it must be so obvious that "it goes without saying"; (4) it must be capable of clear expression; (5) it must not contradict any express terms of the contract.' That case was approved by the High Court in Codelfa Construction Pty Ltd v State Rail Authority of New South Wales [1982] HCA 24 ; (1982) 149 CLR 337.
Case: Deputy Commissioner of Taxation v Partinex [2000] NSWSC 99 ; (2000) 34 ACSR 391
Outcome: cited
An application under s 1322(4)(a) is not confined to a procedural irregularity. The subsection clearly has a wider application: Jordan v Avram (1997) 25 ACSR 153 at 157; Deputy Commissioner of Taxation v Partinex [2000] NSWSC 99 ; (2000) 34 ACSR 391.
Case: Dunlop Pneumatic Tyre Company Limited v New Garage and Motor Company Limited [1915] AC 79
Outcome: cited
In Dunlop Pneumatic Tyre Company Limited v New Garage and Motor Company Limited [1915] AC 79 at 86-87, Lord Dunedin said: '3. The question whether a sum stipulated is penalty or liquidated damages is a question of construction to be decided upon the terms and inherent circumstances of each particular contract, judged of as at the time of the making of the contract, not as at the time of the breach ...' 440 Lord Dunedin said in relation to the task of construction (at 87): ' 4. To assist this task of construction various tests have been suggested, which if applicable to the case under consideration may prove helpful, or even conclusive. Such are: (a) It will be held to be penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison with the greatest loss that could conceivably be proved to have followed from the breach. ... (b) It will be held to be a penalty if the breach consists only in not paying a sum of money, and the sum stipulated is a sum greater than the sum which ought to have been paid ... (c) There is a presumption (but no more) that it is penalty when "a single lump sum is made payable by way of compensation, on the occurrence of one or more or all of several events, some of which may occasion serious and others but trifling damage" ...'
Case: HIH Casualty &amp; General Insurance Ltd v New Hampshire Insurance Company [2001] 2 Lloyd's Report 161 
Outcome: cited
The Heads of Agreement entered into on 13 October provided that the 'Free Carry Shares' were only to be issued so long as the respondents 'continue to be employed by (the applicant)': clause 5(g). The shareholders agreement also contemplated that the respondents had to achieve the performance criteria themselves so as to be entitled to the issue of the shares under that agreement. In my opinion, regard can be had to those two previous transactions to discern the objective intention of the parties in relation to the circular resolution: HIH Casualty &amp; General Insurance Ltd v New Hampshire Insurance Company [2001] 2 Lloyd's Report 161 at [83]. 388 The very purpose of performance shares, in my opinion, is to induce the person to whom the shares are given to perform. That was the purpose for their issue in this case because it was important for the applicant to have those who had the responsibility of managing the applicant achieve the performance criteria. The performance shares were issued with the objective intention that the performance criteria in the performance shares would be met by the holders of the performance shares themselves. That means that the respondents had to cause the applicant to achieve the performance milestones. 389 It was contended by the applicant that the respondents had to raise capital with ANZIS in accordance with ANZIS' offer of 29 November 2004 because that transaction was later embodied in the subscription agreement. Because that particular capital raising did not occur, then that criteria was not achieved. I do not think that the circular resolution necessarily obliged the respondents to raise capital only in accordance with ANZIS' offer of 29 November 2004. I think the criterion that needed to be met was to raise sufficient capital so as to allow the second criterion also to be met. It did not need to be with ANZIS or, if it was with ANZIS, it did not need to be only in the terms of the offer made on 29 November 2004. It was only necessary that the respondents raised sufficient capital to allow the second criterion to be met. In any event, that does not weaken the applicant's case because, whatever the criterion was, it was not met by either or both the respondents. 390 In my opinion, the first respondent is not entitled to claim that the performance shares converted to B Class shares after the applicant satisfied the performance criteria in the circular resolution under its new management. 391 It follows that if I am wrong about my conclusion that the resolution contained in the circular resolution should be rescinded and the issue of the performance shares set aside and the first respondent is entitled to the performance shares, the first respondent will never be entitled to have those shares convert to B Class shares because he and the second respondent did not satisfy the performance criteria.
Case: Jordan v Avram (1997) 25 ACSR 153
Outcome: cited
An application under s 1322(4)(a) is not confined to a procedural irregularity. The subsection clearly has a wider application: Jordan v Avram (1997) 25 ACSR 153 at 157; Deputy Commissioner of Taxation v Partinex [2000] NSWSC 99 ; (2000) 34 ACSR 391.
Case: Langton v Forsayth Mineral Exploration NL (1975) 1 ACLR 227
Outcome: cited
A proceeding under s 1322(2) is not limited to a legal proceeding: Langton v Forsayth Mineral Exploration NL (1975) 1 ACLR 227. A proceeding extends to 'every type of procedure which might be undertaken by a company or in relation to a company's affairs': Broadway Motors Holdings Pty Ltd (In Liq) and the Companies (New South Wales) Code (1986) 6 NSWLR 45 at 55.
Case: Pacific Carriers Ltd v BNP Paribas [2004] HCA 35 ; (2004) 218 CLR 451
Outcome: cited
The two documents under consideration (the circular resolution and the Executive Service Agreement) must be construed in accordance with the principles laid down by the High Court in Pacific Carriers Ltd v BNP Paribas [2004] HCA 35 ; (2004) 218 CLR 451 and Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52 ; (2004) 219 CLR 165. The principles which may be extracted from those decisions are: 1. The subjective beliefs or understanding of the contracting parties are irrelevant. 2. The rights and liabilities of the parties to a contract will be determined by reference to the objective intention of the parties. 3. The common intention of the parties will be discerned by considering what a reasonable person would understand the parties to have intended to have meant by the terms. 4. The documents will be construed having regard to the purpose and object of the commercial transactions. 5. Reference must be made to the text and the context of the terms under consideration. 6. Reference should be had to the surrounding circumstances known to the parties.
Case: Re Insurance Australia Group Ltd [2003] FCA 581 ; (2003) 45 ACSR 702
Outcome: cited
Section 1322 is a remedial provision and should be given a liberal interpretation: Re Insurance Australia Group Ltd [2003] FCA 581 ; (2003) 45 ACSR 702. The power to validate given in s 1322 and s 254E must be exercised by reference to the purposes of the sections in the Corporations Act . 360 The purpose of s 1322 is to empower the Court to relieve a company of the consequences of non-compliance with a proceeding under the Corporations Act . It allows the Court to make orders to validate procedures or transactions where there has been non-compliance with a provision of the Corporations Act . The power is to be exercised in favour of the company unless, in the case of s 1322(2) , the irregularity which is the subject matter of the application has caused or may cause substantial injustice but cannot be remedied by any order of the Court.
Case: Re Wave Capital (2004) 47 ACSR 418
Outcome: cited
Whilst s 254E is silent on the question of substantial injustice, in my opinion, no order would be made under s 254E unless the applicant could show that no injustice would be caused to any other party. In Re Wave Capital (2004) 47 ACSR 418 at [29], French J said: 'Like the discretion to validate invalid share issues under s 254E , the power conferred by s 1322 must be exercised having regard to the requirements of the purposes of the Corporations Act and any other relevant statutes whose application may be in issue. It must also be exercised having regard to the interests of all parties affected and the public interest in ensuring compliance with statute law and company constitutions. Evidence of a blatant disregard of the provisions of the Act or the constitution of the company may lead to refusal of relief: Re Onslow Salt Pty Ltd (2003) 198 ALR 344; 45 ACSR 322 and cases there cited.'
Case: Re Westpac Banking Corporation (ACN 33 007 457 141) and Others (2004) 53 ACSR 288
Outcome: cited
No order can be made under s 1322(4)(a) unless the party applying can satisfy paragraphs (a) and (c) of s 1322(6). The matters in s 1322(6)(a) are disjunctive: Re Westpac Banking Corporation (ACN 33 007 457 141) and Others (2004) 53 ACSR 288. It was contended by the applicant that such an order would not be made because the first respondent has not discharged his obligation of establishing that a validation order would be unlikely to result in a substantial injustice to any person. 371 It was contended that the applicant had given as its particular in its plea in paragraph 4E.2 and paragraph 4EE that no substantial injustice has been or is likely to be caused to any person; that the applicant had approved the issue of performance shares on terms no more favourable in the shareholders agreement; and that thereafter any person who had acquired shares did so with knowledge of the agreement to issue those shares. For the reasons already given, that particular has not been made out. The performance shares in the circular resolution were to issue on more favourable terms to the respondents than the performance shares contemplated in the shareholders agreement. 372 The applicant pleaded in reply to the first respondent's defence that the failure to comply with s 246B of the Corporations Act has resulted in substantial injustice in that the applicant's shareholders would have or may have refused to approve the issue of the performance shares. No other particular of any substantial injustice is given by the applicant in that pleading.