mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Bailey v Beagle Management Pty Limited [2001] FCA 60 ; (2001) 105 FCR 136
Outcome: considered
The Court now considers the issue of discovery under Order 15A Rule 6 of the Rules. In Paxus Services Ltd v People Bank Pty Limited (1990) 99 ALR 728 at 733 Burchett J held that Order 15A Rule 6 is to be given a wide operation and construed beneficially: see also Minister for Health and Aged Care v Harrington Associates Ltd [1999] FCA 549 at [27] . Order 15A Rule 6 has been the subject of judicial consideration by the Full Court of this Court in Bailey v Beagle Management Pty Limited [2001] FCA 60 ; (2001) 105 FCR 136. At 143 the Court said: 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 were 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: Caltex Refining Co Pty Ltd v Amalgamated Metal Workers Union (1990) 51 IR 113, Trade Practices Commission v CC (NSW) Pty Ltd (1995) 58 FCR 426 at 436 (Lindgren J), Treasurer of the Commonwealth v Canwest Global Communications Corp [1997] FCA 578 (Full Court), Microsoft Corporation v Adelong Electronics Pty Ltd (t/as Ade Computers) [1997] FCA 224 (Burchett J), Bertran v Vanstone [1999] FCA 1753 at [18] - [23] (Kenny J). Donnelly v Davison [2000] FCA 1396 ; (2000) 105 FCR 1 (Branson J). Also one should not lose sight of what the majority of the High Court in Grant v Downs [1976] HCA 63 ; (1976) 135 CLR 674 at 685 noted as the public interest " ... which requires that in the interests of a fair trial litigation should be conducted on the footing that all relevant documentary evidence is available."
Case: Fermanis v Cheshire Holdings Pty Limited (1990) ATR 1862
Outcome: considered
In Fermanis v Cheshire Holdings Pty Limited (1990) ATR 1862 at 1865 Murray J said: It is clear, I think, the provision operates as a machinery provision to facilitate tax collection in relation to liable trust income, when the liability is otherwise imposed than by s 254. At 1866 his Honour continued: I conclude that the Income Tax Assessment Act s 254(1)(d) is a machinery provision which requires a trustee in possession of trust income to retain out of such income received by him in his representative capacity moneys sufficient to pay tax which is, or will become due, in respect of the income. 17 Since there may be a debt to the Commissioner of Taxation arising out of the nondisclosure of income from undisclosed overseas assets of the estate, the Court is satisfied that, prima facie, the applicants may have a claim arising under a Commonwealth statute sufficient to attract the jurisdiction of the Court pursuant to s 39B(1A)(c) of the Judiciary Act 1903 (Cth) and s 19 of the Federal Court of Australia Act 1976 (Cth). Accordingly the Court possesses jurisdiction to grant relief.
Case: Paxus Services Ltd v People Bank Pty Limited (1990) 99 ALR 728
Outcome: followed
The Court now considers the issue of discovery under Order 15A Rule 6 of the Rules. In Paxus Services Ltd v People Bank Pty Limited (1990) 99 ALR 728 at 733 Burchett J held that Order 15A Rule 6 is to be given a wide operation and construed beneficially: see also Minister for Health and Aged Care v Harrington Associates Ltd [1999] FCA 549 at [27] . Order 15A Rule 6 has been the subject of judicial consideration by the Full Court of this Court in Bailey v Beagle Management Pty Limited [2001] FCA 60 ; (2001) 105 FCR 136. At 143 the Court said: 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 were 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: Caltex Refining Co Pty Ltd v Amalgamated Metal Workers Union (1990) 51 IR 113, Trade Practices Commission v CC (NSW) Pty Ltd (1995) 58 FCR 426 at 436 (Lindgren J), Treasurer of the Commonwealth v Canwest Global Communications Corp [1997] FCA 578 (Full Court), Microsoft Corporation v Adelong Electronics Pty Ltd (t/as Ade Computers) [1997] FCA 224 (Burchett J), Bertran v Vanstone [1999] FCA 1753 at [18] - [23] (Kenny J). Donnelly v Davison [2000] FCA 1396 ; (2000) 105 FCR 1 (Branson J). Also one should not lose sight of what the majority of the High Court in Grant v Downs [1976] HCA 63 ; (1976) 135 CLR 674 at 685 noted as the public interest " ... which requires that in the interests of a fair trial litigation should be conducted on the footing that all relevant documentary evidence is available."
Case: Minister for Health and Aged Care v Harrington Associates Ltd [1999] FCA 549
Outcome: referred to
The Court now considers the issue of discovery under Order 15A Rule 6 of the Rules. In Paxus Services Ltd v People Bank Pty Limited (1990) 99 ALR 728 at 733 Burchett J held that Order 15A Rule 6 is to be given a wide operation and construed beneficially: see also Minister for Health and Aged Care v Harrington Associates Ltd [1999] FCA 549 at [27] . Order 15A Rule 6 has been the subject of judicial consideration by the Full Court of this Court in Bailey v Beagle Management Pty Limited [2001] FCA 60 ; (2001) 105 FCR 136. At 143 the Court said: 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 were 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: Caltex Refining Co Pty Ltd v Amalgamated Metal Workers Union (1990) 51 IR 113, Trade Practices Commission v CC (NSW) Pty Ltd (1995) 58 FCR 426 at 436 (Lindgren J), Treasurer of the Commonwealth v Canwest Global Communications Corp [1997] FCA 578 (Full Court), Microsoft Corporation v Adelong Electronics Pty Ltd (t/as Ade Computers) [1997] FCA 224 (Burchett J), Bertran v Vanstone [1999] FCA 1753 at [18] - [23] (Kenny J). Donnelly v Davison [2000] FCA 1396 ; (2000) 105 FCR 1 (Branson J). Also one should not lose sight of what the majority of the High Court in Grant v Downs [1976] HCA 63 ; (1976) 135 CLR 674 at 685 noted as the public interest " ... which requires that in the interests of a fair trial litigation should be conducted on the footing that all relevant documentary evidence is available."
Case: Skyes v Stratton [1972] 1 NSWLR 145
Outcome: cited
As a second source of federal jurisdiction to support the orders sought the appellants rely upon Regulation 41 of the Banking (Foreign Exchange) Regulations 1959 ('the Regulations') which provides for a possible right to restitution. The applicants refer to the decision in Skyes v Stratton [1972] 1 NSWLR 145 at 160 and submit that any contract or arrangement is illegal if it is made for the purpose of or has the effect of defeating, evading, avoiding or preventing the operation of the Regulations. They submit that the evidence prima facie establishes the existence of such arrangement between the deceased and the respondent. 14 The applicants submit that unless restrained, the respondent may destroy relevant records and deal with assets derived from the estate in such a manner as may defeat the interests of the Commissioner of Taxation. Further, there may be tax liabilities of the estate which will need to be met from the assets held overseas. The applicant's concern is based upon the fact that the respondent has refused requests to make disclosure of the existence of such assets. 15 In these proceedings the applicants are trustees as defined by s 254(1) of the ITAA 36. By virtue of s 254(1)(f) of the ITAA 36 trustees are indemnified for all payments which they may make pursuant to the ITAA 36 or of any requirement by the Commissioner.
Case: Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Outcome: cited
The subject of the inquiry by the Tribunal was a claim by the appellant to be accorded protection by Australia as a refugee within the meaning of the Convention Relating to the Status of Refugees . Such a claim raises issues of the utmost importance, of "human fate" as Toohey J remarked in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 407. In many cases it will be a matter of very great difficulty for applicants to produce evidence to corroborate their accounts of why they have fled their own countries. Often enough, applicants may feel it necessary, in an alien culture, to exaggerate or even fabricate aspects of their claims to have the kernel of a just claim recognised. A genuine refugee may be far from a saint. These observations are, by now, trite.
Case: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FCR 409
Outcome: cited
The Tribunal was obliged to give the appellant a fair and full hearing of such material as she produced as might support a conclusion that she met the Convention definition of a refugee, and to strive earnestly to decide the matter on the substantial merits of the case (s 353(2) of the Act) in order to arrive at "the correct or preferable decision": Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FCR 409 at 419. In my opinion, it cannot be said as to the relevant evidence, that the appellant was fairly heard. Not only was the material unlawfully rejected, if properly considered and accepted, it could have directly affected an assessment of the appellant's prospects vis a vis the government and the Maoists respectively if she were returned to Nepal. It could indirectly have forced some re-examination of her credit, otherwise damned. That is, material of crucial importance to her case was effectively excluded from consideration for no legally acceptable reason. On this aspect of her case the Tribunal effectively did not give her a fair hearing. That was also a jurisdictional error. 22 The matter may also be analysed as a species of apprehended bias. It is possible, in my opinion, that a reasonable, well-informed lay observer might suspect that the Tribunal, being otherwise dissatisfied with the appellant's credit, had rejected her witness' testimony regardless of what might have been, independently of the appellant, its intrinsic worth. In my view, that is enough to constitute nullifying apprehended bias.
Case: R v War Pensions Entitlement Appeal Tribunal, Ex parte Bott (1933) 50 CLR 227
Outcome: applied
In my opinion that was also a jurisdictional error. Misconception of a public duty and a professed performance of it based on that misconception "amounts in law to no performance": R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 227 at 242-3 per Rich, Dixon and McTiernan JJ.
Case: Cargill v Bower (1878) 10 Ch D 502
Outcome: cited
a party does not repeat a claim for relief made in the originating application in the statement of claim, the claim must be taken to be abandoned: Renowden v McMullin [1970] HCA 24 ; (1970) 123 CLR 584 ; Cargill v Bower (1878) 10 Ch D 502 ; Lewis and Lewis v Durnford (1907) 24 TLR 64 at 65.
Case: CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384
Outcome: cited
context in which s 444F finds itself must be examined to determine the construction of the section. The context not only includes the enactment itself but also the existing state of the law and the mischief which the enactment was intended to address and remedy: CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384 at 408. Part 5.3A of the Corporations Act Part 5.3A of the Corporations Act , which contains s 444F , was enacted in 1993 following the Harmer Report and provided at that time for a wholly new regime for the administration of companies apart from the existing forms of external administration and especially winding up in insolvency. Section 435A identifies the objects of the Part: 435A The object of this Part is to provide for the business, property and affairs of an insolvent company to be administered in a way that: (a) maximises the chances of the company, or as much as possible of its business, continuing in existence; or (b) if it is not possible for the company or its business to continue in existence results in a better return for the company's creditors and members than would result from an immediate winding up of the company.
Case: Dare v Pulham [1982] HCA 70 ; (1982) 148 CLR 658
Outcome: cited
rule enunciated in those cases is no more than an extension of the general principles of pleading. There is more than one purpose for pleadings. One of the purposes of pleadings is to define the issues and to give the opposing party fair notice of the case that that party must meet: Dare v Pulham [1982] HCA 70 ; (1982) 148 CLR 658 at 664. Order 11 rule 2 of the Federal Court Rules assists to achieve that purpose by requiring a party to plead a statement in a summary form of the material facts upon which the party relies. Absent any claim for relief in the statement of claim, a respondent may properly assume such a claim is not being pursued. A court will confine a party to the party's pleadings if to do otherwise would be unjust to another party.
Case: Gould and Birbeck and Bacon v Mount Oxide Mines Ltd (In liquidation) [1916] HCA 81 ; (1916) 22 CLR 490 
Outcome: cited
are, of course, only a means to an end. They are designed to accord the parties procedural fairness. If the parties choose to ignore the pleadings and fight the case on different issues "it is impossible for either of them to hark back to the pleadings and treat them as governing the area of contest": Gould and Birbeck and Bacon v Mount Oxide Mines Ltd (In liquidation) [1916] HCA 81 ; (1916) 22 CLR 490 at 517. The applicants abandoned their claim for statutory relief against forfeiture under s 138 of the NT Property Act in their written submissions. It was accepted that the conditions precedent for the operation of the section had not yet occurred. The only claim therefore arising on the pleadings at trial was the claim for relief under s 444F of the Corporations Act . The Parties The first applicants (the administrators) are the joint and several deed administrators of the second applicant, DNPW Pty Ltd (subject to DOCA) (DNPW). DNPW was incorporated on 23 December 2003 and operated two licensed venues, namely the Ducks Nuts Bar and Grill (Ducks) and the Fox Alehouse (Fox) in Darwin.
Case: Lam Soon Australia Pty Ltd v Molit (No 55) Pty Ltd (1996) 22 ACSR 169
Outcome: cited
444F should be construed with those objects in mind and should be given a construction that would promote those purposes rather than a construction that would not: s 15AA of the Acts Interpretation Act 1901 (Cth); Lam Soon Australia Pty Ltd v Molit (No 55) Pty Ltd (1996) 22 ACSR 169. The scheme of Part 5.3A is to empower the creditors to determine the future of the company. It does so by allowing the company to appoint an administrator in circumstances where the directors are of the opinion that the company is insolvent or likely to become insolvent at some future time and resolve that an administrator should be appointed: s 436A. The administrator is entrusted with the administration of the company and after his or her appointment has control of the company's business, property and affairs and has the power to carry on the company's business and manage its property and affairs, and to perform any function that the company or any of its officers could have performed if the company were not under administration: s 437A. The administrator's appointment stays the powers of any officer or a provisional liquidator of the company: s 437C. After his or her appointment, only an administrator can deal with the company's property: s 437D. The administrator's appointment also impacts upon the members in that the members cannot, during the administration of the company, transfer shares in the company, except if the administrator consents or the Court permits: s 437F. The administrator must convene a meeting of the company's creditors within eight business days of the beginning of the administration in order to determine whether to appoint a committee of creditors: s 436E.
Case: Lewis and Lewis v Durnford (1907) 24 TLR 64
Outcome: cited
a party does not repeat a claim for relief made in the originating application in the statement of claim, the claim must be taken to be abandoned: Renowden v McMullin [1970] HCA 24 ; (1970) 123 CLR 584 ; Cargill v Bower (1878) 10 Ch D 502 ; Lewis and Lewis v Durnford (1907) 24 TLR 64 at 65.
Case: Re Java 452 Pty Ltd (administrator appointed) (No 2) (1999) 32 ACSR 507
Outcome: distinguished
argued that Re Java 452 Pty Ltd (administrator appointed) (No 2) (1999) 32 ACSR 507 was authority for the proposition that an order cannot be made after the lease is determined. I do not agree. The application with which the Court was concerned in Re Java 32 ACSR 507 was by a lessor for an order that it have leave to take possession of leasehold premises pursuant to s 440C of the Corporations Act or, alternatively, a declaration under s 441F of the Corporations Act . In Re Java 32 ACSR 507 the landlord, Permanent Trustee, gave notice of default under the lease for non-payment of some four months rent. The notice stipulated that if the breach were not remedied Permanent Trustee would re-enter the premises 14 days later. Five days later Permanent Trustee gave a notice said to be under s 146 of the Property Law Act 1958 (Vic) in relation to interest and legal costs said to be owing and warned that unless the breaches were remedied within 14 days Permanent Trustee would re-enter without further notice. About a week after the second notice the directors of the lessee company appointed administrators to the company under s 436A. The company was then still in possession of the leasehold property but the breaches in the two notices had not been remedied. During the administration two offers were made to purchase the company's business and for the purchaser to take an assignment of the lease. The administrators recommended that the creditors approve the arrangement. However, Permanent Trustee insisted that the lease had been terminated and that it was not prepared to negotiate with the prospective purchaser but had found another prospective tenant. The administrators recommended to the company's creditors that a deed of company arrangement be executed pending the sale of the business and the assignment of the lease. Permanent Trustee commenced the proceeding in the first place seeking leave to enter into possession pursuant to s 440C in case the creditors resolved that the company enter into a deed of company arrangement that day because Permanent Trustee would be at risk under s 444F if such a proposal were made. The application therefore before the Court was in relation to a company in administration, not a company subject to a deed of company arrangement.
Case: Renowden v McMullin [1970] HCA 24 ; (1970) 123 CLR 584 
Outcome: cited
a party does not repeat a claim for relief made in the originating application in the statement of claim, the claim must be taken to be abandoned: Renowden v McMullin [1970] HCA 24 ; (1970) 123 CLR 584 ; Cargill v Bower (1878) 10 Ch D 502 ; Lewis and Lewis v Durnford (1907) 24 TLR 64 at 65.
Case: Audio Products Group Pty Ltd v Mamone [2005] NSWSC 982
Outcome: referred to
The respondents' submission that Mr Donovan, as a member of a class of possible objects of appointment, has no proprietary interest in the trust assets is correct: In re Coleman; Henry v Strong (1888) 39 Ch D 443 ; In re Weir's Settlement Trusts; Macpherson v Inland Revenue Commissioners [1971] Ch 145. However, I do not think that is fatal to the applicants' application. I say that for the following reason. I think the test formulated by the High Court in Cardile ((ii) in the passage quoted above at [15]) and reflected in O 25A r 5(5) is wide enough to cover the present circumstances. Both refer to a process which "is or may ultimately be available" and the fact that the third party " may be obliged to disgorge assets" or contribute towards satisfying the judgment or prospective judgment. It is possible that Mr Donovan will receive an interest under the Stephen Donovan Family Trust which is recoverable by a trustee in bankruptcy in the event that the applicants obtain a judgment against Mr Donovan and he is placed into bankruptcy upon being unable to satisfy that judgment. I am mindful of the fact that considerable caution must be exercised in making freezing orders against third parties, but at the same time there needs to be some flexibility in the test, as the circumstances of this case plainly show. Other courts have considered that the use of the word "may" is significant: Westpac Banking Corporation v Hilliard [2001] VSC 187 ; Audio Products Group Pty Ltd v Mamone [2005] NSWSC 982 ; Robmatjus Pty Ltd v Violet Home Loans Australia Pty Ltd [2007] VSC 165.
Case: Australian Securities and Investments Commission v Carey (No 6) [2006] FCA 814 ; (2006) 153 FCR 509
Outcome: referred to
There are two other possible bases for orders in this case. The first is that, in the circumstances of this case, the Court is able to look behind the trust structure and determine that, in reality, the property of the trust is effectively Mr Donovan's property because he effectively controls the power of selection ( Australian Securities and Investments Commission v Carey (No 6) [2006] FCA 814 ; (2006) 153 FCR 509 at 518 [29] and 520-521 [36]-[39] per French J). The second possible basis is that Mr Donovan has, in the particular circumstances of this case, an expectancy under the Stephen Donovan Family Trust (see Gartside v Inland Revenue Commissioners [1967] UKHL 6 ; [1968] AC 553 at 607 per Lord Reid, at 615 per Lord Wilberforce; Hunt v Muollo [2003] 2 NZLR 322 at 325 [11]) and the case falls within Cardile ((i) in the passage quoted above at [15]) or O 25A r 5(5)(a). As these possibilities were not the subject of detailed submissions by counsel, I do no more than identify them as a possible basis for the freezing orders against the third parties.
Case: Gartside v Inland Revenue Commissioners [1967] UKHL 6 ; [1968] AC 553
Outcome: referred to
There are two other possible bases for orders in this case. The first is that, in the circumstances of this case, the Court is able to look behind the trust structure and determine that, in reality, the property of the trust is effectively Mr Donovan's property because he effectively controls the power of selection ( Australian Securities and Investments Commission v Carey (No 6) [2006] FCA 814 ; (2006) 153 FCR 509 at 518 [29] and 520-521 [36]-[39] per French J). The second possible basis is that Mr Donovan has, in the particular circumstances of this case, an expectancy under the Stephen Donovan Family Trust (see Gartside v Inland Revenue Commissioners [1967] UKHL 6 ; [1968] AC 553 at 607 per Lord Reid, at 615 per Lord Wilberforce; Hunt v Muollo [2003] 2 NZLR 322 at 325 [11]) and the case falls within Cardile ((i) in the passage quoted above at [15]) or O 25A r 5(5)(a). As these possibilities were not the subject of detailed submissions by counsel, I do no more than identify them as a possible basis for the freezing orders against the third parties.